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Qornell Law School Library
“aoa
THE
NEGOTIABLE INSTRUMENTS
Law

AS ENACTED BY

THE STATE OF OHIO

AND OTHER STATES

Full Text of the Law with Annotations

and Citations

EDITED BY

EMILIUS O. RANDALL

SUPREME COURT REPORTER AND PROFESSOR ON THE LAW OF BILLS
AND NOTES IN THE COLLEGE OF LAW, O.S.U.

SECOND AND REVISED EDITION

NORWALK, OHIO
THE LANING COMPANY
1906
 

__ Mh ch

Entered According to Act of Congress, in the year 1906,
By THE LANING COMPANY,

In the Office of the Librarian, at Washington.

 
PREFACE

The text of this work is that of the Ohio Statutes as enacted
April 17, 1902, found in 95 Ohio Laws, 162.

The original draft of a Negotiable Instruments Law, designed
for general adoption, was made in 1896, by the Commissioners on
Uniformity of Laws, and first enacted by New York, followed by
several other states, with slight modifications in a few instances.

‘The Ohio enactment follows that of New York, except that
the Article, Subdivision and Section numbers have been changed,
and headings introduced, to conform to the system of the Ohio
Revised Statutes.

‘The annotations herein have been carefully and systematic-
ally prepared directly from the cases, and all interpretations and
speculations as to the law have been strenuously avoided.

Each decision, inserted in its proper place, stated as briefly
and concisely as is consistent with clearness, presents a complete
verified key to the highest Ohio authority extant upon the ques-
tions involved. As in most cases, this code presents only the law
as it has been, the decisions are as authoritative as if enacted
under the law itself. The citations are mostly made from the
syllabi of the cases; the syllabi since and including the 5th Ohio
State Reports (1855) being the authoritative statement of the law.

The year in which the case was decided appears before the
title. The citations are to the Laning series of Ohio law publi-
cations. A complete table of cases also appears, by the aid of
which the application and relation of every Ohio case to the pres-
ent act can be readily ascertained.

ii)
wee

NOTE TO SECOND EDITION

The second edition of this volume, herewith issued, is the
result of a careful revision of the first edition, with an increase
of some fifty pages of additional citations and annotations. The
first edition met with such a favorable demand by the lawyers,
bankers and students of law, throughout the state, that the pub-
lication of this second edition was made justifiable.

For material assistance in the preparation of this revision, I
wish to acknowledge my indebtedness to Mr. B. W. Gearhart, a
graduate of the College of Law, Ohio State University, and a
member of the Columbus Bar.

E. O. RANDALL,
Columbus, Ohio, October, 1906.

(v)
LIST OF ABBREVIATIONS

Bullicciccdosesss ie Cisastasiaeaiscreet so eriesen acc Weekly Law Bulletin
Cire: “Dees save cass seiaramnaecnaunmn ener en see Ohio Circuit Decisions
DGC aiaisiaiennsesince.e 9 4a whi naeeparOdueiee sp bunvianie cs enn nies eer Ohio Decisions
IN eae caren lexbi aia an ap ey ah ea dol ate see as Seater eda eee a aa axera)eaaecean a dialogs Nisi Prius Reports
OBS Diviigiseaanie ieee vies teaig dosed ie bes weke ves Ohio Federal Decisions
OLS: Co Dioieccumeasese Ohio Supreme Court Decisions, Unreported Cases
OhIO ssa os ad nase ee eennee dieses essa speed erase ecard x od Ohio Reports
Ohio. Dec.. (Dayts) sos esc escaviwaswdasavess cece cess Ohio Decisions, Dayton
ONG: St scecscsceoeaeteisaie Save 54 carhratonentseetd ne Ba sa Severs eta Ohio State Reports
Rigseikhasijantn cand eoose wnaaa alee pamatienu ewes Circuit Court Reports
RE sraccaisinis eiaieseistateid sel ssicarnne Muse aegumruane en ys Ohio Decisions, Reprint
We git is sisecitis g aswisie' do's oo vies Sisians Wright’s Reports, Supreme Court of Ohio
(vii)
TABLE OF CASES CITED.

 

 

 

 

 

 

 

 

 

 

 

PAGD

Allen v. Johnson, 11 C. D, 42 (20 R. 8)...... cece eee e eee eee 67, 72, 136, 183
American Exch, Nat. Bank v, Granite Co. 10 C, D. 814 (19 R. 650)...... 90
Anderson v. Poindexter, 6 O. S. 622

o. Shirp, 44. Of B, SOC. seus pteaudaicds sean ean
Anderton v. Shoup, 17 O. S. 125... .. ccc cee ee eee eee ex
Andres v,. Morgan, 62:0. S. 2860 660 66 6% wesrsdaewawee dd ob 6 e524 4 aeRO
Andrew v. Blachly, 11 O. S. 89.............
Armetrong, In v6, 5 O. F, D, O84... ..ccenseeneeeennxenenal eri enveanan
Armstrong v. Bank, 46 O, S. 512...... cece eee eens

Vs , 6 GO BL Dy S06 cocwawssceceeccen's

vy. Deshler; 12) OHIO 476i. c icc sie scawedas eeeceee sa canenadeeewes 2

vi Scott, 6. O; By Ds Qin cscce ck namnneeeseaereversescse aed
Aungst -v:, Créedue; 72 (O;. Si, S50 sc20 searmseeiwecdeees eee k ses decent.
Austin ‘vy. Miller; 2: OQ. FP. De TOs ccesscirece saierdcenimeie a pe eeduewe aan
Avery v. Latimer, 14 Ohio 542... ..... ccc ccc cece cece ee nee ee neces
Ayres v: Harness, 1. OBI0 S68.0.0 ccna cnessewcesawacu sheen mana eye eee
Baggs v. Loudenback, 12 Ohio 153.......... cece eee eee e eee nee 50 (2)
Bailey ‘vi. Nichols; 31. :O. FY. D! 210i 3 cccausimenee es eee ee ew cee aes eee eed 72
Baily’ vs ‘Smith, 14. O01. Ss B9Gstesiescss ve sees a eckencciews oie died se 45, 70, 79
Baker v, Brennan, 12 C. D, 211 (22 R. 241)... ... ccc ce cece eee cet eeee 30
- Vi Kinsey, AL. Ov S.. 408i. 6 oecss cescasie arcu oain ea aw bale 69 (2), 131
Baldwin ‘v. Bank, 5: ‘OBI 278. oo..2 owe siwsidieeware o's eae a wee weerei prerelease 146

yi. Hox, Ohio: Dee,  (Dayt:). Whoa scien es ed xe cee awed «amas 67
Bank v, Bank, 49 O. &. S5leccsvscesys041 saxewswssex ene 120, 125, 138 (2)

vy. Dutior, 41. 0, SS, DiSecssas pevveen as ssauseeeawaaee revuwes 139
Bank of Cadiz v. Slemmons, 34 O, S, 142....... ccc eee eee ee eee eee 132 (2)
Bank of Marysville v. Brewing Co. 50 O. 8S. 151................ 176 (2), 177
Bank of St, Clairsville v. Smith, 5 Ohio 222...... toile ssa ceiion'd cas wtg- Se, wise ove ow OT
Bank of Steubenville v. Hoge, 6 Ohio 17....... ccc cece cece cece en eees 142
Bank of United States v. Carneal, 1 O. F. D. 259.2... ....ccceeeneeee 111, 121
Barnet. vi Young; 29 ©. Ss Vsceececcaan tegancaweeeeecese seaseek Bada 152
Barnhisel v. Bank, 7 C. D. 533 (17 R. 124)....... cc eee eee eee eee 36°
Barnum vy. State, 15 Ohio T17..... cece ccc ecw eee ee ene eens 41 (4)
Barrett v. Allen, 10 Ohio 426........... cece eee e cece ee cee neneees 26, 180
Bashford v, Shaw, 4 O. S. 263.......... cece cece eee eee eens 113 (2), 114 (2)
Bassenhorst v. Wilby, 45 O. S. 383....... ccc cece ewer eens 101, 106, 108
Bassett v. Avery, 15 O. S, 299... ccc cece cece een e veces cecarencnes 86 (2)
Beach v. Julian, 1 O. S. U. 373 (84 Bull. 255)................ 00000. 159
Beard v. Westerman, 32 0. S. 29... .. ccc cece cece eee e eee e rene eenes 106
Bebout v. Bodie, 88 0, 8. 500i. c sy enssc evan neers ees 8 eek OO OE wee we 148
Bell =. Wien, 10 Oy Be O00 cccd ccc udauiwnsdanaaas seas eueexe eieny 146
Belmont Bank v. Patterson, 17 Ohio 78........ ccc cc cence eee ee nneee 109
Benedict v. Bank, 6 Dec. 320 (4 N. P. 231)....... cece cece eee eee eee 37

v. , 10 °C.. Di B05 (10 By 408) vcs wewsranec bana scaedeaencs 16
Benninger v. Hess, 41 0. S. 64.0.0... 0000 deve nsere creer eccecees TT, 84 (2)
Bentley v. Hollenback, Wright 168...........ccceeeceeeeeers aren arsiid longer 1438
Bever v. Butler, Wright 368....... SECT SIGERE EHTS os SN SERS +» 143
Bigelow v. Bigelow, 4 Ohio 138..........+0.. Sareea pececcesescsceese. 26
x TABLE OF CASES CITED.

 

 

 

 

 

Cahill vy. Smth, 6 C, D. 74 (9 BR. 4). cccccccccccccccccsvernvesesss 4?
Carlisle v. Wishart, 11 Ohio 178.....cccscacccccccccccsccesscvccsces

 

Clark vy. Boyd, 2 Ohio 56........... sigh gi 0h sigue ionefailerevaseiere’s 54 arvaxsislavereteveie
v, Clark, 90. D. 476 C16 Bi, 108) svnceranessanes eee neeeekunnes
v. Kensell, Wright 480..... SE REMAIN Ales O65 eas 8 eaper eet OS,

 

Clay v. Hdgerton, 19 O. S, G49... .ccecvecccveccccssecccseeese42, 113,

PAGD

Bigelow v. Comegys, 5 O. GS. 256... ccc rece erence ne rec cessscecsrccuves 79
Blair v. Bank, 4 O, B. D. 476......ccecccccccecccccceceeees+ 62 (3), 73
Blazer v. Bundy, 15 O. S, 57......-eeeee peeecescce Bieter» ~gr tianesandaas 141, 145.
Boalt v. Brown, 13 O. 8. 364......... i seta lelar das dca wala pictan alarsestoteasyses . 157
Bode v. Werner, 16 C. D. 206........ savaieaveneneacee 2’ (2), 43; 46, TT
Bodkins vy. Taylor, 14 Ohio 489........... Ua BBS 5: Bi to a Ree Re SCORE p2
Boggs v. Wann, 7 O. F. D, 489........ccceeccseee weeeee. 3d, 50 (2), 53
Bohl vy. Carson, 8 O. FB. D. 222. .... ccc cc wren ccc e rene cece svvrees 51, 52
Booco v. Mansfield, 66 O, S. 121.......... bite tatedsresd aleve a aapetereo os acaaea GL
Bostwick v. Bank, 6 C. D, 682 (13 R. 675)...... sence eeceesepeeceeeece LIF
Boyd vi Bank, 82 0: S. 526.0006 essesadiscwecsw sens cee secees sisiaveidits Ao
v. Cramer, Ohio Dec. (Dayt.) 42............0005 eeweses 56, 74, 94

_ Bradstreet v. Tate, Ohio Dec. (Dayt.) 54.........eeceeeeeee ask ey beepers 94
Bramble v. Ward, 40 O. S. 267............ ap eco ctacecavedoude wskaaideeca’s. 144, 145, 146
Brenner vy. Tate, Ohio Dec, (Dayt.) 58......... cc eeeeevvccccecs aveusbaveranete 144
Bridge ‘Co, ‘v:. Bank, 46. QO. Sz 224.0 660. ccs e worecccawomewee dee ced ssn lls
Brige) vy. Creed, 65 0, B.. 40. 50 -e~ scsi wewewyyed otek eed eee ee nwewn 131
Bright v, Carpenter, 9 Ohio 189............ ded eaveta le acete wialaepieere 21, 103 (2)
Brown v, Willis, 18 ObI0 2Tessascovadnevsveweses beens soe enews 50
Brownell vy, Harsh; 29 (0. S. 681ecc cis csiavccccveeess sieaseecwviws jane 45
Brown-Ketcham Iron Wks. v. Hazen, 14 C. D. 681........ eS BSS Oia Secor 136
Burckhardt v. Bank, 6 Dec. Re. 1036 (9 Rec, 691).........eee00e cacao atioso 128.
Burgoyne v. Insurance Co, 5 O. S. 586... . cece cece ener cece rence eeces 134
Burke v. Insurance Co. 12 Dec. 87........- 0c cece e ren eeceee ae are er eiaued 175
Burkhardt v. Zimmerman, 1 Dec. 659 (32 Bull, 1388)............-0000- 30, 87
Bush y, Ellsworth, 6 Ohio 168......... ccc carer eee cere never ereences 42
Butler v. Birkey, 138 O: S. 514.006 c2ss sdeweveswaws se ssec cae se sels sie Sisiieless 148
Byington v. Geddings, 2 Ohio 227........... ce see eeenee Sede es Rete OR
Camp v. Bostwick, 20 0, S. 28Tsascrst cere ecaeecanente aveewe 141, 150 (2)
vy. Janes, 6 Ohio 418........ cece cece eee cece cece eeeeenecees 26
Carlisle v. Lamb, 9 C. D. 70 (16 R, 578)........ iepedsaua Wehehe dees 159
Vi. Wishart, 11 Ohio) 172) 3.6 so:6 coco eesisiaisuare eieteiaieisrers: ss Sevens 90 (2)
Carpenter v. Kelly, 9 Ohio 106............- cai eariasedaned wei werexes 151 (2)
Carran ‘y,. Little; 40.0. :S: 897.6 c00 66 ics os srwridewesneneves seas savitdins, OT
Carrington v. Davis, Wright 735.............ccee eee Peco PE SSET GK 135
Case v. Heffner, 10 Ohio 180...... Sisk VEINS Be ores 8 35 eocee cence ee, 107 (2)
Castle “v. ‘Rickly, 44 ©: S.. 4908.65.66 cee cn ceawe sw swaade eek ee eons 101
Chaffee v. Bank, 40 O. S. 1........... 0000s lee! wyieriasd ee rer 84
Chamberlain v. Railway, 15 O. S. 225............. bus legate w¥e eos 50, 51 (2)
Champion v. Griffith, 13 O. S. 228.......... ccc cece ale RES Swe aay 26.
Chappeliar v. Martin, 45 O. S. 126............06. seoeceee 83, 84, 131 (2)
Chappell v. Phillips, Wright 373......... eet OER S ES ER OES 67, 117
Chittenden vy. Ensign, Wright 721........... Ssiaelo wale nitied dco aerials | LS
Christmas v. Griswold, 8 O. S. 558..........0.6. he TaN ee eon 178
Church v, Swope, 38 O. S. 493. IRIRROL ERC ORR e bes EWES cow 95, 97, 98
Cincinnati Fish Co. v. Bank, 2 C, D. 463 (4 R, 135). ikea n ee EES SiN ae a ak . 176
Cincinnati, H. & D. Ry. v. Bank, 54 O. S. 60. Kaba ww wae eee seresiwmawen LIC
Cincinnati, N. O. & T. P. Ry. v. Bank, 56 O. S. "351 oe bee eeenenenee eee 9
v. Bank, 1 C, D, 109 (1 R. 199)... .40 scene ence Lercivensewes TL
Citizens Bank v. Clossom, 20 O. S. 78........+5. eT eee ee eee ia
Citizens Nat. Bank v. Brown, 45 O. S, 39............. GIR ERED acccees 964
Citizens Sav. Bank v. Blakeley, 42 O. S. 645. POETS TET OP
 

 

 

 

 

 

 

 

 

TABLE OF CASES CITED. xi

Pach

Clements v. Hull, 35 O. S. 141. BARR Rice Oa evar ilenetacelenanstefevarccsea, ES
Cleveland & P. Ry. v. Kelley, 5 0. S. 180. cepedcans fia Los Ow aA soy apap aeettsilal bX 15
Clinton Bank v. Ayres, 16 Ohio 283........ Set eS Welw See SaaS eR Ars 116 (2)
Vi, Hart. "5 (O) 8. 88.5 ce. cetinnicesdews oie ee sa mero ubneaws 27 (4)

Cobble. y: Bank, 63.0. 8, ‘28 \oe.c5 jiaiecwawies geneseds sa eeaideas Manges 13
Collings -y. Insurance Ce. 17 0, S. BlGivniwansaag peeve ec cae a0 bnenwewen 36 (2)
Solver v. Wheeler, 5 C. D. 278 (11 RB. 604)........ ccc eee eee eee 47, 114, 129
Combes v. Chandler, 33 O, S. 178........cceeee ccc ecss So avemene ...69, 76, 77
Commercial Bank vy, Armstrong, 7 O. F. D. 487........ cece eee ee eeeee 59
¥. Reed, “10 O10: 4908). ogo sscsisie: dcvieicusa ss wie is oo oe ow eee eRe vakew oe 167

Cone v. Rees, 5 C. D, 192 (11 R. 682)......... bots cat aaiahaaan ere 114, 145 (2)
Conkey Co. v. Skillman, 11 Dec, 812............-00000: denoawew ewes 98, 104
Conn ‘v. Gano; 1 Ohio 4840.04 63 ss0cieaaweceiae ee Nas 8681 aeeaee TOES 107
Coombs vy. Parker, 17 Ohio 289.10: :ccicdeecasecscsevasoveneeneseays 142
Coppock v. Kuhn, 2 C. D. 347 (3 R. 599)...... cece cece eee eee e eee 129
-Corcoran v. Powers, 6 O. S. 19... ccc cece ec cee cect en ete ceneetecence 854
Cordes v. Lindeman, 6 C. D, 53 (18 R, 882)....... ccc ccc ccc eee ence eee 47
Corre v. Rogers, 9 C. D, 854 (18 R. 892)... ccc ccc cee cece eee nenee 82
Covert v; Rhodes, 48 0, 8. 66 .scsacscescces ent edaseteennienedaacs 177 (2)
Cowles vy, BRagiiet, 14. ORio 38. avinexwusaaay ee ee ed 444 exer wee wes ERR OS 82
Cramer v. Moore, 36 O. S, 347...........6.- ROEM ae eepet eee ate Aaa SS 81
Crandall v. Cuyler, Wright 378...........ccceec cence e eet eceseeeeees 21
Crass ¥, Balistd, Wren VWevcceveseaainces: 6009 Ge eee ERewnee ee dae 136
Crawford v. Cully, Wright 453.......... ccc ecw cn cc eee cre ce nee cver vues 160
v. Swearingen, 15 Ohio 264........ ccc cece cece cece eee ce ee eeeace 71
Creighton v. Comstock, 27 O. S. 548. ...... ccc cece cece eee cree e eee $9
Crouse: ¥;. Wagner, 41 ©. Ss 470 sisiceciege eee ee des oss eieidinaensiielvae cave's 98
Cummings v: Kent; 44 ©: S. 92sccccsssiccciiccssasasescvesee acess 95 (4)
v. Ritter, 1 O. S. U. 290 (33 Bull. 202)..... (2a san Sodeewee Tees 82

Curtis v. Bank, 39 O. S. 579. .... cee ew ce ere eee Ssh DR Ree We ee 35, 75
Cushman y. Welsh, 19 O. S. 586... ..... ccc eee ee ee eee eee teens 14 (8), 55
Cuyahoga Steam Furnace Co. v. Lewis, 4 Dec, Re. 17 (Clev. Rec. 15)....11, 74
Dalrymple v. Wyker, 60 O. S. 108........... xe eee Kiveunnn »..-42 (3), 43
Daniel. v. Downing; 26 O. S.. S78icascicciccsiay seewncesecveseceds 166
Darling v. Wooster, 9 O. S. 518...........-08- PDR ETS ORAS 25
Darst v. Brockway, 11 Ohio 462........ 0. ccc cee ces tec e cece eeenee 52, 183
Davis v. Bauer, 41 O. S. 257..........-. fotne4 Vee ens y Chae 155, 156
Davis v. Gray, 17 O. S. 380......... cece eee ee ens itads Aeabaea aerate eaoneusae 52
Davie y, Herrick, 6 Ohio 56. 2.20 cssecceecaaencecanean cevnecas 120, 122, 180
DeCamp v: Hanns, 29 ©. S, 46 Tea dsa ii ccc eas cs toed yeeweeee eve ae ea 89
Deming v. Board of Trustees, 31 O. S. 41. ...... cece cece ere eee ee eens 156
Dempsey v. Bosh, 18 0. S. 87Gcases vevvicarsisniaveassaa new ewwas seen 153
Denison University v. Manning, 65 TOS SL SRE ado ten ert alae ald 131, 146
Deposit Bank v. Turner-Looker Co. 3 Dec. 581 (2 N. P. 73)........0.000> 160
Develing v. Ferris, 18 Ohio 170........ ccc cece cece cee te tener ecenes 129
Dexter Sav. Bank v. Friend, 12 O. F. D. 208.............4.. 84 (2), 62 (2)
Dibble v. Duncan, 2 O. FB. D. 145... . cece ccc cee eee ene ama ew 26, 97
Diem y. Koblitz, 49 O. S. 41... . cece cece e cece ere reer cree ne eeenenes 49 (2)
Dixon v. Dixon, 18 Ohio 113............. aievasyan spews werrrrere ry tt 23
Dodge v. Bank, 20 O. S. 234........ ret tt ee 40 (2), 116, 178
v. 5 BOO. ISS Dinu ens re b55 Soa e ee ae Rohe CA Rees 174, 175
Dorland vy. Mulhollan, 10 O. S. 192.......eceecceeceecnes Sob far arlee-ceevavenans 33
Doty v. Bank, 16 O. S. 1.......... Sh gue bee Cee Te a Teer ee eT ere 51
v. gp NGO! Se TS Bierce s oie asia esi wieieiee’s Sele ek giseonsndisiare 81 (2)

v. Rigour, 9 O. S. 51D. .ccccccec cece ccceseseesscsccccecesecess LT
Doughty v. Hildt, 1 O. F. D, GOL... . cece eect e ee ee eee e eee 167
Douglas v. Waddle, 1 Ohio 413......cccceceecsecccesececcecerses 04, 105
Downer v. Bank, Wright 477...ccccscsecccseccccessccerssessteerens 142
xii TABLE OF CASES CITED.

 

 

 

 

 

 

 

 

 

 

 

 

PAGH

Duble v. Railway, 3 Dec. Re. 346..... Cee Ee eee a Pore 136, 143
Duckwall v. Zimmerman, 2 Ohio 23....... cece cece cece rene reece eens 109
Dugan v. Campbell, 1 Ohio 115......... cece e eee eee ene utes ~-17, 43
Dumont vy. Williamson, 18 O. S. 515... . ce eee eee ee eee eee ..42, 100
Dunbar v. Brown, 2 O. F. D. 460... . cc ccc cece e een weer ee evevneee .. 119
Dundas’ v;, Bowler, 2: O; Fs Dy 298s scsi acccarcaa reece oe eee eeeewes 56, 104
Dunn v. Dewey, 5 Dec, 149 (7 N. P. 334).......... a a ate a veceigg a eye tose 137, 178
Durrell v. Belding, 4 C. D. 263 (9 R. 74)......... SM VOpieereeesals GF
Dye.ve Dyes 21. Oh Sy SOna ir cetaceans ene sasndanmseae 106, 140/
Dye %, Stott, 25 0. 8. 104eccvascns sanvueuseceewicaseorss ses0118, 127 (2)
|

Eagle Ins. Co, v. Blymyer, 10 Dec. 417 (8 N. P. 275) (2).......c.eeeeee 5
Eaton v. Davidson, 46 O. S. 355..... 6. cee cece ee eee cece nrc een eeeee 68
Edwards v. Chair Co. 41 0. S. 17... cece eee cece cece ence en eenaee 139
ven Morripy “1 ORIG) G24 ioc jancud gia eiecarndielen wesw aye Sa Eies mie inleagere 135
—— v. Owen, 15 Ohio 500......... cece eee cee ee teen cee eee cenees TE
v. Richards, Wright 597.........2ceeenceenenee shatters tine: 26

Eells v. Shea, 11 C. D, 304 (20 R. 527)......... 0. eee ee eee 36 (2), 96 (2)
Ellis vy. Bervellier, 15 Ohio 489........ pte nee e eee e ee ee eee eeeneeeeeee 41
v. Insurance & Tr. Co, 4 O. S. 628......... cece eee eee 38, 40, 52, 96
Emerine v. O’Brien, 36 O. S. 491........ cece cece cee teenies 77 (2), 117
Erwin: yi oynn), UO. Os. Ss. CBOs 6 acsra anus aleiveta sateen hatavevacare a aia vein dog Grenenerie 57, 58
vs, Shaffer; 9 O; S). BBs sssiseciesesesena tecersterdes danve-aa wi wacreraiee ws Gabares 134
Histep:'v:: Cecil, 6) Ot Si BSC iscscs ss veskavo neces aiceeawicendOeagaua ince i weer apanantila ie vasa tags 166 (2)
Evans v, Lumber Co, 11. C, D. 548 ....066cceecsngeceaus 109, 110, 115 (2)
vi State, 8 0; ‘Si WG escess scans see yeaa ewe cease eeatasenns 40

Ewan v. Brooks-Waterfield Co. 55 O, S. 596....... ccc ewer ececeee 43, 92, 101
Fallis v. Griffith, Wright 303......... cee veececcc reece nscees 10, 46, 63, 80
Farmers’ Bank vy, Brainard, 8 Ohio 292.......... cece cence eee nnceee 167
Vir HAUGRSS: BE Ol WSs, BSB ccscsiew te cescuseds seas ciiocosasavainnes'eceule co iuey deinsersnese wisconsin 140

v. Raynolds, 13 Ohio 85....... 0. ccc cece eee eee 51, 142 (2), 145 (3)

w: Safe & Lock Co. 66 0, 8, 267 .0csscsvcnceneeaevevessvaan vows 9

Baer y.. Riekers, 46) iO (Sy QOD aici sire vs si tarts 2000: gp So sao aleve aes ee eeasioe lace 98, 101 (2)
Farrington yv. Gallaway, 10 Ohio 543....... 0.0... ccc eee eee eee tees 147
Faurot v. Neff, 82 O. S. 44........cce eee eeee CU MUANE URL DEER SRR e SOO 132
Fawcett v. Freshwater, 31 O. S. 687......... cc cee cece cece eee eeee 140
Fenner v.. Dickey, 3 O, Fs D: 689 eccccscsces seein acne eed tcaaeea can 80
First Nat. Bank v. Armstrong, 6 O. F. D. 3875........ 0... cc ccc eee 60
v. Bank, 58 O. S. 207..........000 0 88 (4), 39, 59 (8), 100 (5), 176
—— Vv. Bs BBE TOS. GY, MABE catinitoti aust ice hues tdeusta ft 'e yin aoe 88 (2), 100
—— v. Burger, 9 Dec. 824 (41 Bull. 2)........ cece eee ee eee 60, 154
— v. Fowler, 36 0. S. 524... cece ccc ee cece eee eee eens 88 (2)
————. ‘y; Garlinghouse, 22 0. S, 492....s.saceecee eee eosionaniees cue 140
——— ¥i Green, 40 0. S: 481. ccccscscewadenevesdeen eo 449 HON 8 See AOE 65
=== ‘y. Teise; 13: (GC: Di 40 c.snssct esa esaiei sees sian ase eeeeeeaedas 136
Vi. (tout, 68: O: |S. Balx-cies As cesemcaings ae ew ee Rave ae Pies es ercearaneauees 18
Fithian v. Corwin, 17 O. S. 118... ... cece cee ee ee ee ee eens 141 (2)
Bielg ¥. leet, 42 0, B. Ghanss cecemesenwaseweseinns syueduaew Avi ny eeenavonaSedlentit 174
Forbes v. Dspy, 21 O. S. 474... ccc cece cece eee cece ee eee eens 19, 78
Ford: ‘ye (Hiatt, Wrights TS ioc. svecsicis ni ston eroser ainda ddacacdales Sires oergeaiaigne re wie ier - jv
Vv. Rehman, Wright: 484506 awwancccwrteeiealie te gig age ae ees wiviices, i160,

Forest v. Stewart, 14 0. S. 246... ccc csenccncceneccccscesasneseses 118
Fossitt v. Bell, 2 0. F. Ds 563:avverscesecneerereewesvavewnn wads 63 (2), 73
Four Mile Val. Ry. v. Bailey, 18 O. S. 208...........ceeceeee wears 93
Francis v. Bank, 3 Dec. 383 (1 N. P. 281)........... SPR Rie Save, AT
Frank vy. Ingalls, 41 O. S. 560... cc. ccc ccc cee reece teen nen enes eitese 9
Franklin vy. Baker, 48 O. S. 296......... Secale ites 'm Gh eae ee Bw hel Nie a 154

Frazier vy. Johnston, Wright 131...........eceeees eee ee 113
TABLE OF CASES CITED.

 

 

 

 

 

 

xiii
PAGD
Frost v. Lowry, 15 Ohio 200..... aha Gb Uv eres etaiarasseneldls) ereveeiew ge OO; OD
Fullerton v. Bank, 1 O. F, D, 175.........e00000e oldisistelata peas Wasa 137
v. Sturges, 4 O. S. 529........... 00.0000. CONTR TEESE 21 (2), 33, 158
Funk v. Bilis, 3 Dec, Re. 310....... ccs cece eee e ence nceeeseeeretess 61
Gale v. Van Arman, 18 Ohio 336..........cccccecee eee ececceaeeeeeee 26
Gallipolis Furn, Co. v, Symmes, 10 C. D. 524 (19 BR. 659)..... cece eeees 82
Gano; Vi. FISK, 43) Oy (8: 462i eects ale eis bh-a's 4:2 Soracieinne eeaey oo8 48 a4 HA 23
v. Samuel, 14 Ohio 592.......... ¢ wba GNOPREREKOREE KER ERS 30, 97
Gard ‘vi Neff, 389 (0: Ss 607. wcsacoeiea ene eed aay candies sree vee ee 146
Gardner v, Bank, 39 O. S. 6G00....... cece cece cee eee eeeeeceeeeees 117
We Conn, 84) O18. V8 Be ciaisanace cas deacace-e Giace ach aaa wands bvers-ane 29 (2), 67 (2)
Gaster vy. Waggoner, 26 0: 8. 450. cases nwaccueed Gdaunengeeg enews 149 (2)
Gaston v. Barney, 11 O. S. 506, 507....... ccc cece eee ee cece veneee 133
Gatch -v,. Simking;, 25: Os 8, 890ii2 viv ecgudawacenn wiewkbis heeeg ss 149 (2)
Gates v. Banking & S. Co, 11 C. D. 721 (22 R. 724)... . cee eee eee eee 11
Gazzam v. Insurance Co. Wright 215............. ccc eee eee c eee ceeees 17
Gibsonburg Banking Co, v. Banking Co, 10 C. D, 754 (20 R, 591)......... 72
Gist v. Lybrand, 3 Ohio 308........ ccc cece eee e ect e eee e eee eeeees 107, 124
lee Ce, SE. Ry Be ae cracniak ck sawaciak eeweolNoewy eaee eye 139
Goodrick “¥, ‘Case, 68 O.. 'S.. VS Te ieg esters ores siaora ie ate Siatarediarie wWiavaraie 68d eis'o 5s 130
Gordan. vy. Kearney, 17 Ohle. Si 2ecsnsayv essences s ene eencerSadeeenasa 49
vy; Preston, Wright 341. ...<sscciweowawevictecx cons we cgemes 18
¥. Steinmetz, TL OL B. Bolen 1is50 ees eee ebaten awardee ose 64
Graflin vy. Gibson, 3 Dec. Re. 236 (5 Gaz. 41)........ cee eee eee ee 48, 104
Greiss v. Wilkop, 5 C. D. 544 (12 R. 481)... ccc eee cee eee eee 30
Greene v. Dodge, 2 Ohio 431......... 0. cece cece eee re eens 52, 103
Groby v. Lamme, Dayt. 158...............4. i iia iwila “brie Sdepiartgndine Medd eva wey ee 28
Greenough v. Smead, 3 O. S. 415............0.00 008 -25 (3), 56, 97, 99, 170
Hadlow v. Beavis, 1 O. S. U. 857 (42 Bull. 256)... .... cc cee cee eee 24
Vell. x, Green, 14 OH Pa0iesscesew i bbs gc 8k dad k RETR Res eR EES 135
Hamilton v. Phelps, Wright 690...........c cece cee en cence rer eceetnee 135
Hamer’ ‘vy; Moore, 8 0:38. 239 si sacases tite scan oon dks waters ed 45, 151
Harlan vy. Read, 3 Ohio 285........ cc cece cee cece cece eee renee teens 79
Harner v. Baldorf, 35 O. S. 118... ... ccc cc cece cern cee e rete nee eene 132
Harris: v. Clark, 10 Ohio Gscscscsansasawes sees esee sa veaeoes 109 (2), 111
Hinrsh. ¥. Kleppet, 28 0. SB. S00.....4 000 eeesasednnkiweeady Rede ees aw’ 156
Hattersly v. Waterville, 16 C, D, 226.......... cece ccc ee eee neeee -- 46
Hauenschild v, Coffin, 10 Dec. 536 (8 N. P. 124)......-. 0. cece eee 1387 (2)
Hays v. May, Wright 80....cc.ccececceeccsccneresteeseeens 108, 107 (2)
Hecker v. Mahler, 64 O. S. 398....... cc cece cece cece cence eee ene 96. 138
Henderson Litho. Co. v. Belford, 10 Dec. 640 (8 N. P. 640)....... 83 (8), 147
Henry v. Spengler, 5 C. D. 362 (12 R. 153) ..... cece eee ee eee 119 (2), 126
Hil x, Henry, 27 Obie Gincsnnta ct ieee dss a5@benwenee ee Reeawe des 18
Hilton v, Catherwood, 10 O. S, 110...... cece cece eee ee reenter 119
Himelright v. Johnson, 40 O. S. 40... .. cece eee eee eee eee eee ene 29
Holden v. Lippert, 4 C. D. 527 (12 R. 767)... cece ee cece ren cees 59 (2), 137
Hollister v. Reznor, 9 O. S. 1..........-- (eh'kdd PRESEN E REISER ee W SENS 2 134
Holmes v. Gardner, 50 O. S. 167... .. ccc cece cece ee eee eee ere enee 56 (2)
: v. Hayes, 1 O. S. U. 206 (82 Bull. 346).......... 0c eee eee eee
Se eeccccceccccceeecses+33, 34 (8), 87 (2), 54 (2), 71, 72, 87, 99 (2)
Holeworth v. Koch, 26 0. 8. 33.6... ccneanccereenanwes nee rnenans 45, 49, 50
Honingfort v. Vehmann, 2 Dec. 151.......... Reine Weriiere s+ De ws a etd ew 112
Hosler v. Beard, 54 0. S. S08veccesareeseeewaas va nedes oe eeras 88 (2), 91
Howe v. Hartiess, 21 GO, S. 499: 41s seuss cive deuseaa guavnns 10, 108, 115
Hubbard vy. Insurance & Tr. Co. 3 Dec. Re. 294........ ccc cece eens 166
Hudson yv. Wolcott, 39 O. S. 618........ cece eee teen eee eeees 57, 127
Hunt v. Woodward, 4 O, BF. D. 446....... cece cece cee e ence ee eeee 184
xiv TABLE OF CASES CITED.

 

 

 

 

 

 

 

 

 

 

 

PAG

Hunter v,. Field, 20 Ohio 340............ (a iedCBas Save aeegsisienobS (2) 65
Huntington v. Finch, 3 O. S, 445........ eee ceeeeeveeees oA5, 155 (2), 158
Hurlburt v. Squires, 3 O. F. D. 469........... Peace cdia es Races iavetaeeteaeeea 137
Hyde v. Bank, 1 O. S, U. 204 (32 Bull. 317)...... ere -oe10, 52, 55
Ide v. Churchill, 14 O. S, 373..... UIA CHEEK aes eee e141 (2), 155
Irwin v. Lombard University, 56 O. S, ‘9. PANEATT EERE Ae REE eae 43
Isham v. Fox, 7 O. S, 317...... rab csibriamid sate Yanenete. al atse les er 180
Jacobs v. Mitchell, 46 O. S. GOL..... cece cece cee e eee uceseeee 80, 115 (2)
James vy. Roberts, 18 Ohio 548....... cc cece ccc cece cette tee on eee 81
Jenkins v. Clarkson, 7 Ohio (pt. 1) T2.....ccces cece ere cescneeeeeeve 142
Jennings v. Mendenhall, 7 O. S. 257........ cee ee eee cerevee 17, 67 (2), 134
Johnson vy. Bank, Ohio Dec. (Dayt.) 197.2... .. cece eee eee eee 31, 35, 41
v. Otterbein University, 41 O. S. 527....... cece eee eee eee 44 (2)

Wi May, 27 ©, Sy B74 itccsiwssied cose ne dees oe Serer 68, 70 (2), 83

Jones ¥;. Bangs; 40) 0; 8. 189.0 s6 svesevsrapate’s wielww esate 6b 6 3.8 6:46. 4 aa er arorogerore » 156
¥, Brown; 11.0.. 8; €0lssssissasesvess sevcscsan sane’ :18, 142, 144

vs. Kilbréth, 49 (0. 8: 40D sscwecacidawscisa iis es cexsreienewes 32

Joyce: Vv. Cockrill, 12: (Ol, Fe D, B48. cca ce is see sisnses ee ageese Ris ooo wie esere reer auersieid 143
Judy v. Louderman, 48 O, S. 562........c ccc ce cee cc cere renee reece 44, 49 (2)
Kahn: ‘vy; Walton, 46. 0, (Si DOG. scsiawcndanawses ce eale so eneedenwdew 174
Kanaga v. Taylor, 7 O. GS. 184....... ccc e eee eee eee eee eee e eee 8
Kautzman vy. Weirick, 26 O. S. 330........ ccc cece eee ween rene eee 102
Keel v. Rudisell, 7 C. D. 464 (13 R. 199).......... cee wee ee ss Mee pr a Rte 68
‘Reeén, ‘¥; “Hall, By 0. (8. WOT 290.45 kc see eee oO 4 ER ORT 45
Kelley v. Few, 18 Ohio 441........ ccc cece cee ee cece eect e nee enne 63
Kernohan v. Durham, 48 O. S. Li... cece cece eee tee eee teens 76 (2)
vy: (Manss;, 253). O03 -Sb. DUSs ss avynwewlnmnindwe, oe e0 8 pds ace eral eercneiarsieiss 39
Kerper v. Wood, 48 0. S. 613... 00... eee ee eee gee ee eee eee 28, 131 (2)
Kerr v. Iddings, 3 C. D. 607 (6 R. 604)...... cece eee ee eee eee 159 (2)
Kibby v. Kibby, Wright 608...0.s00ccaesecacaaeesvertctieusvnnesaaas 79
Kingsbury v. Phelps, Wright 370........... cc eee cere cere e cence eeees 147
Kingsland vi “Pryor, 88 O. iS. DOs oss ssiccecicise ee odie vee e-ae-aceeunsiace sare 32, 85
Kitchen y. Loudenback, 2 C. D. 129 (3 R, 228)......... cece eee eee 90 (3)
v. gc ASO Obs Si MTT iataasecyie'e toe, 8 taney cereus eet aaa ini 68, 83, 88

Kline. ‘y;. Prindle, “Wright: 415 .0.6.0....s0ccnwme amore ae ou dacs es disac ee erdarg 135
Kneisley v. Kneisley, Ohio Dec, (Dayt.) 221......... cc cece eee ee eens 60
®noz Co. Bank y, Lloyd, 18 0, S, 358 ccc5c.0404is pnw sewer veesenee 54, 98
Kyle v: Green, 14 Ohio 491... 6 csadasinscwwseew aves as eves oeecnes 127 (2)
vi ‘Thompson; 11 O, 8. 616. + sicccosaseearsa cede tis a eacawene nes 75

La Dow v. Ball, Ohio Dec, (Dayt.) 225.......... ee eo 83
Lagonda Nat. Bank v. Portner, 46 O. S. 381... ... ccc eee eee eee eee ence 80
Dake, En: re; 160-0, Ws Dis sOB ie 3:0. sre ae ecan es once sale ar asecatee orale ag a a satafareleaey 183
Lane vy. ‘Thomas, 15 C) D.. S08. aici vieeuiare eee ee ob els es steerer estou 6 11
Lanier v. Nash, 5 O. F. D. 628.............. errr eer ree a keuees « TS
Larimore v. Wells, 29 O. S. 1B... .. ccc ccc ce eee ere e cen cencee eese 182
Lawson vy. Bank, 1 O. S. 206... .... cece cece e cere e ete eee 124 (2), 125, 126
Layet v. Gano, 17 Ohio 466........ cece cc eee eee ee ee cence eee 33 (2)
Leavitt v. Morrow, 6 O, 8, 71........ sy auaedeveseeiadesevaye ion caaiava. unre anlereroateets 134
Lee v. Bank, 3 O. F. D, 598........... era ean aentcatanie 57 (2), 58, 60 (2), 66 (2)
v. , 8 0. FD, 601........ LERLECE RARE OE ES OM 58, 60, 104

v. Hartwell, 3 Dec. Re, 225.........+. eienigeelets Peale alates Rew ee 62
Leggett v. McClelland, 39 O. S. 624...........00. {kN KNS See w ETE ES ee 53
Lenhart v. Ramey, 2 C. D, 77 (3 R. 185).............. 97, 123, 124 (3), 128
Leonard v. Kebler, 50 O. S, 444..... CEAAEEE PEARS Rees evenB® (2)
TABLE OF CASES CITED. xv

 

 

 

 

 

 

 

 

PAGH

Lewis v. Bank, 12 Ohio 182..........ccccccceccceeees (ana bowed «. 167
vy. Tipton, 10 O. S. 88..... Ree e eS LEER RAE tea anaw. cooe 20
Liggett v. Wing, 1 Dec, 277 (31 Bull: 85)............0.055 goad eee 125 (2)
Lillie vy. Bates, 2 C. D. 54 (3 R. 94).............. Sea Oe km Wee 94 (3)
Litler v. Horsey, 2 Ohio 209............cccccccecvcceeee checeretane oeesae L5L
Loffland v, Russell, Wright 438............cccccnccccccecees ois s Seay q9
Logue ¥. Smith, Wright 10........sese008 Pagani Ketseeees 61, 158
‘Loomis. -v; Bank,’ 10: °@; ‘8. 8206.09 «6.3.4 sd maamasteeoune ness: oeees seas 70:
Longworth v. Askren, 15 O. S. 370........ccceceeeveceees adver dU edacevadofarees 133
Lord v. Graveson, 16 C, D. 371........cccsee cece eescceeees dsb srcco snd 66.
\Loudenback v. Lowery, 2 C. D. 422 (4 R, 65)...... cc ccc cece cceeeeees 87
Lonsdale v, Bank, 18 Ohio 126........ GEC ED NE RO EKERRORES +++-.95, 162 (2)
Geass vy, Warper, 24 0; SG, B28 .6 coy cosa an ice hewsosunacaesunndsaa4 5 81 (3)
Luckett v. Goodrich, 9 Dec. Re. 328....... eevee Mares Omen WRN 5 eee 8 125
McAlpin yv. Clark, 5 C. D. 364 (11 R, 524)........ Miah stig save tevesoie Se: O80 o-8 ates 155
MeBridé ve Moore, Wright 624.24. 060224 eke enpsweweas ees oy ew nde es 135.
McClelland v. Bishop, 42 O, S. 118......... ccc cece eee ee nee 26, 101, 112, 115.
McClure v. Bowles, 5 Dec. 288 (5 N. P. 327)....-.cceccceeeeees 16 (2), 57
McComb vy. Kittridge, 14 Ohio 348...... a 2edlesghs Arata Mees area Oak 142, 145.
McConnell v. Scott, 15 Ohio 401........ cc ccc cece cee eee eee eens 153
McCoy v. Bank, 5 Ohio 548............... Ve NAeDes wees Sse eee ES 129
v. Gilmore, 7 Ohio (pt. 1) 268........ cc. c cc eee eee eee ee wees 26, 65.
McEvoy v. Insurance Co. 2 C. D, 329 (3 R. 569)... . cece eee ee eee eee 145
MeKay ¥. Cakrinigton, 2 0. Po D. Beis es casa aceerhneenavesadg wu basie 80:
McKee v, Hamilton, 33 O. S. T......ceeeceeee pe Sdoeeaceeeu wes we 102 (2)
McKesson y. Stanberry, 3 O. S. 156... .... cc cee ce eee eee eee eee 86, 90
Mackey v. Burwell, 2 C. D. 588 (4 R. 348)... . ce eee cee eee eens 72, 103
McMonigal, v. Brown, 45 O. GS, 499... .. ccc eee c eer c cere cree ecersecees 126
McMurchey v. Robinson, 10 Ohio 496...........0.eeeeeeee 109, 116, 122, 167
McQuade v. Rosecrans, 36 O. S. 442... ccc eee e ccc e ee eee eee n ee eeee 80
Magruder v. McCandlis, 3 Dec. Re. 269 (5 Gaz. 188)........ seiaiie sacar ava 31, 75
Mansfield Sav. Bank v. Miller, 1 C. D. 383 (2 R. 96). is Spicheera er dV eisstinitoe odsee 90 (2)
v. Post, 12 C. D. 577 (22 R. 644).......... 0008. [osRaveainte wists <3 15
Markey v. Waldo, 9 C. D. 762 (18 R. 849)..... cece eee e ee ee eee 47, 103
Marsden. v. Soper, 11 0. S.. 50886 06 cc csecc cscs eeiiaceceewesceicceees 15
Marshall v. Wilhite, 2 C. D. 500 (4 R. 203)......... cece eee ee eee 155, 159
Martina wv. Butler, Wright 582. .000.2seseene sob eendwe eeaenw eee nee 10, 33
vy. Martin, 5 Dec. 394 (7 N. P. 650)... ccc cee cece ences 74

v. Scudder,’ 14 Dec. 283............¢ Fis sdf cect lade tena core eras 46 (2), 47
Maxwell v. Campbell, 8 O. S. 265............ ei soba Gis eave saris ehelies Sow aig ANS 0 - 93
Meier v. Bank, 55 O. S. 446....... cece cee cece mene ncececceeas 28 (2), 67
Merchants Nat, Bank v. Ryan, 67 O. S. 448........ AOMERREA See ees 43, 53
Merrick v, Bank, 11 Dec. 208 (8 N, P. SUD) css sissiccesewceesverss 68, 74
vy. Boury, 4 0, S, 60.00c0aeerrs nan er rer eaeA eas Lees 134, 158
Meyers, In re, 10 Dec, 121......ccccecccccccccccccccscerees eoesees 116
Michenar v. Kinney, Wright 460. .c.005 cnn cesses endeeeeees dee benewees 17
Miles ¥, Réeiniger, 209 0; S. 499ssxasaccecsasennnnwnnaeas sites vevewes: Zo
Miller v. Beebe, Wright 431......... cc ccc ccecccrcccecccnecsceseence 66
v Wools, 21 0. 8. 486. es0 fcc eens sa sicenecow nea dss veenesaaes 78

Mills v. Bank, 1 O. FL D. 144... .. ccc cece cece eee en eees 48, 111, 121 (2)
Minor Fire Clay Co. In re, 9 Dec, Re. 627 (7 N. P. 557). cw eee ee eee eens 75
Minzey v. Manufacturing Co. 15 C. D, 593........... pred eeeceereeeee 12
Miser v. Trovinger, 7 O. S. 281.......cc cece ceeeceeceeeeens 119, 122, 128
Mitchell v. Singletary, 19 Ohio 291........sceeceecee cece reser ereees 134
v. Stickle, Dayt. 264......... ccc ece cee r teen eee n eee scencennne 48
Montana Coal & C. Co. v. Coal & C, Co, 69 O. S. 351............--- 25
Moore vy. Gray, 26 O. S. 525...... arte liiar's Pd bee’ 4 ecavetapsiap Hswieiewesace woe cava avovar whe 149

 

v. Lancaster, Wright 35....-.ccccee cere t ene ect entree ren eeeee 66
xvi TABLE OF CASES CITED.

 

 

 

 

Purviance y. Sutherland, 2 O. S. 478... cscs e eee e ence eeeeeee 30, 42,

PAG

Moore y. Stradden, Wright 88.........s.eseecsnscsseee wie ee 8 aagone 2OG
Morris v. Bdwards, 1 Ohio 189........ ccs cc ccc e renee rence eeneecerce 19
Mortison + Bailey, 6 0. 8, 2S (2) ca vei ess 64s i sekeone rea de ten eens 175
Murphy v. Hagerman, Wright 294......... cc secee es ceacnene concen 41, 50
"Myers vy. Standart, 11 O. S. 29....ccecceece ce cecaceeeeeees 110, 118, 127
National State Bank v. Davis, 24 O. S. 190........ ccc cece eee e eee .133, 148
‘Neal. ‘vy. Naish; 23) 0: Si 483eicweid costes cues oe as aeeaneemeaiice 138 (2), 152 (2)
Nelison vy. Fry; 16 QO) 8. S52ecccewiedieevedccuacescnaie tne e we kee es 153
Newcomer vy. Hollingsworth, Ohio Dec. (Dayt.) 277.........+.06- 61, 104, 127
Newman vy. King, 54 O. S. 273....... ccc eee cee cece eer reer ee neee 154, 156
Nichols v. Gross, 26 O. S. 425.....cccercecscsccnrssvacesncvveces 59, 65
Ohio Ins, Co. v. McCague, 18 Ohio 54....... ccc ee ee eee ee ew eee nee 124, 179
vs Reedér, 18 OWI 25) cscsexsaeey te bi dee snags as eendeweaws > 153 (2)

Ohio Nat. Bank vy. Cook, 38 O. S. 442.... 0.0... cece eee cece rece ene eene 36
Ohio Val, Nat. Bank v. Rousheim, 1 Dec, 221 (31 Bull. 99).............4- 104
O’Keefe v. Mahoney, 10 C. D. 819 (20 R. T09).... cece eee eee eee eens 66
Oldham vy, Brown, 28 0, 8, 41.2.2: cecscceeseaeaie va scewns 105 (3), 149 (3)
Olinger v. McGuffey, 1 O. S. U. 526 (36 Bull, 305)..........00ee eee G1, OF
Orlopp v; Schuellér;, 72 O% S. 4Wasisewweces cees eset ee peeiyeeeee ee 26 (2)
Osborn v. Hawley, 19 Ohio 130 ....... cece eee ence eee ee enne 15 (2)
Vic IIStler, 35) 'O:, Sy 99 se c.Ai thingie ioe eee ae eS oe 55

HY wy AO! Os 1S BAT isc id sctss Sater eucureyidcs sencisacs "Sadcoodt'e) oc) Ge laud sa ogee eytenertoue 139, 144
v. McClelland, 43 O. S. 284...........- esses 64 (2), 65, 69, 76 (2)

Oyster Co. v. Bank, 51 O. S. 106... ... cece cee eee eee eee 95, 162, 176
Packer: ve ‘Davis; 11: Dee: SOL 6 s.026 33 scrciensians wissen ge oe 'a)8's eis Bia ia ep dVersislariers aye 16
Palmer vy. Dodge, 4 0, BS. Slcasicuvveusweweaaeay swe evans baie eareKeue 29 (3)
Pancdast: Vi Rufin, 1 Ohio S8lccacca candice sess 604 9206 ieee es 135
Pariser ©, Riddle. 11 OMG 102. «244 cccsnnececiawe bbe tw ate escemens 119 (2)
Parrott v. McNeil, Ohio Dec. (Dayt.) 285............008- 143, 144 (2), 152
Patterson v. McNeeley, 16 0. S. 348. ...... cc cc ccc ence eee e en eeee 225, 157
Pavey v:. Pavey, 30 0.5, @0Q sc icscciscdiecenwan Ges betes acces teers 41, 49
Peabody v. Fisher, 8 Ohio 536........... cc cece eee eee eee e eee e teens 107
Pearce: vi, Bacon; Wright 627.4 .6ssascuccnecoaveara eee ass seee Qaenes 10
Pease v. Garst, Ohio Dec. (Dayt.) 289.......... 0... eee eens 31, 37, 75
% MeCleliand, 4 0, F, DD. Bbissscduceeweewe csadeesseaiocive 50, 92

Peck v. Beckwith, 10 O, S. 498......... cee cece cece eect e ee eeteceeee 92
Peffenberger v. Ley, Ohio Dec. (Dayt) 290................ tes alles ean atte 145
Peoples & Drovers Bank v. Craig, 63 O. S. 374......... 59 (5), 181, 149, 152
Perkins v. White, 36 O. S. 530............... 101, 102 (2), 106 (2), 112 (2)
Perry ‘v. Carneal, Wright 197. . 2.5.4 .esseesnete se cece esse eees eomnes 148
Phillips v; Dugan; 21 0, S. 466: <5. scans ceeseea vos v ee edeee ye sarees 17
Phipps: ‘v. Hope, 16: OS, O86 secs esac exe sisinemwee ese eee ek eecsi ces 23
Piatt ~,. Bh. ORG, WEEE DP a ac ddicame ewes eed ed seve ok webeae ee 148
Pickaway Bank y. Prather, 12 O. S. 497....... 0. cc cece eee e cece ene 86 (2)
Pitts v, Woglesong, 37 O. S. O76..cccccenneecvawean eyes beens nes ewan 53
Pittsburgh, C. C. & St. L, Ry. v, Linde, 55 0, 8. 28 ..00 ccs ec ci eees 9, 31, 92
Plymouth State Bank v. Milligan, 14 Dec. 481.......... cece cee eee 87
Poagée ‘Vv. State, 8. O. (8. 229s oscccsngaomasaseeee dius des eededes sommes 40
Polleyv. Hicks, 58) O},-S.. 218s... ccsveyineaaemetisg ov ie de ve 645s Ch eee ES 22
Poorman v. Woodward, 3 O. F. D. 449. .... ccc cee cee eee eee ences 34, 56
Portage Bank v. Lane, 8 O. S. 405....... cece cece ee cece eee eens 158
Preble Co, Bank ¥; Russell, 1 OG. S. B18cssnccensver serie nea aes Camacwn OT
Price v, Coblitz, 12 C. D, 34 (21 R. T32).... cece cece e eee 47, 136
Pruden v. Pruden, 14 O. GS. 251... ccc cece cece eee ee eee eee teen eens 25
Pugh v.. Holliday, 8 O. 8, 285.4 occcessseawasveentee sens ea evannde 66, 67
~

 

 

 

 

 

 

 

 

 

TABLE OF CASES CITED. xvii

PAGD

Quebec Bank v, Helman, 5 O. F, D. 235............ Shale dee coe waaatalaiehe 34
Railway v. Bank, 8 Dec. 585....... ccc cece cece ccccccececssceaees 178 (2)
Rawson v. Taylor, 80 O. S. 889........ cc cccce ce ceceeevecceceeeeue 93 (2)
Ream vy. Bank, 1 C. D. 351 (2 R. 48).... ccc cece ccc cee ee ee eee eeeees 16
Reddish v. Pentheus, Wright 588..........ccccessceaseccccevveves 105, 142
Wo “Watson, 6. Ohio: 510200000004 4 aadannemocnis oat oo saee ue 145

Reed v. Evans, 17 Ohio 128........ ccc cece cece cece te nceeresseeeee 42
Reedy v. Burgert, 1 Ohio 157...........cccceceue cece eeeceeeeceaes 135
Reeves v. Bank, 8 O. S. 466.0... ... 0... cece cece cee nneeeeeeeeeeeneeeus 117
Reiff v. Mulholland, 65 O. S. 178. ...... 0 ccc cece cece eeceeeeeeees 35, 130
Remington v. Harrington, 8 Ohio 508...........ccceeee cc ceeereuee 119 (2)
Reznor ‘v;, Hatch, “TO; iS. 248 awais voces sds eran ye ee pe eada os 160
Rhodes v. Lindly, 3 Oi0 S1s..scce cas cc ceca aes KAM eRe wee NEE ee ead ST EAS 42
Richmond v. Patterson, 3 Ohio 869...........cceeeeee cence cece eenes 42
Rigley v. Watts, 8 C. D. 229 (15 R. 645)...... cece cece cease 18 (2), 110 (2)
Riley v, Anderson, 2 O. F. D. 184........ ccc cece c cen c cee eeeeceee 73, 87
¥. Johnson, 8 Oo S26.cccccas si ceneancdesiawanagevare weeds 21
Rindskepf ¥. Doman, 28 0, 8, Bl@.sc.ccewceserseercupewseeae ey eeves 78 (2)
Ring <y.. Foster, <6 Ohio: 279. cciconewyetesd 544 $4 Wegosws eae eee eeae 4s 173
Robbins v. Klein Co. 66 O. S. 199... .. ccc cece eee cee ee eeee 12 (2), 18
Roberts v. Thompson, 14 O. GS. L.ws cece eee cc cece eee eee eee 32, 107
Robertson v. Case, 8 Dec. 386 (7 N. P. 127)........ cece cece eeeee 68, 137
Robinson: ‘vy, Abell, 17 Ohio: 8G vice cieavs bcc cae eeenvitien ewes se obec was 97
Vy, Bank, 44: iO; SS. 440 seeing stele tadawrnd seeeeeakes's see 35

yi, Kildreth;: 4: ©. Fi. Ds GAs sewsieiies cae ses donne nemeagens hanes 148

Rogers v. Corre, 6 C. D. 602 (10 R. 346)....... cc cece ec eee eee ence 82
Rohrer v. Morningstar, 18 Ohio 5S79...... ccc cece eee eee eee cee eees 71
Rooker vy. Rooker, 29 O. S. Liwwicccccccc weer cere ceca seteeccveeee 17, 85
Rosenthal v. Sutton, 31 0. S. 406............... 0.00 warbteugvela MAH He aia 151
Ross vs Doland, 29: 0: Si. B18 sccscaaiwewiec ccs oe eee ed Hetivnae eee 89 (2)
Rossman v. McFarland, 9 O. S. 369........ ccc cee cence cece cc enneeee 26
Roxborough v. Messick, 6 O. S. 448.......... ccc ee eee eccecee el eane 53, 71
Russell v. Failor, 1 0. 'S. S2Tecscsseedsiccescsescwiwiesousgaw ness 151 (2)
Sackett v. Kellar, 22 0. GS. 554... .... ccc cece eee eee e eee 85 (2), 183
Sargent v. Railway, 32 O. S. 449... ccc cece cere ee eee n ee vee eeee 66
Raunders vy. Stotts, © Ollg B80 .ccc. cece ceed pac been eaeadea eee des 79 (2)
Senryver v. Hawkes; 22 0. 8. S08ss0c0ccesseeasdeevnseenenwwne en ens 156
Second Nat. Bank v. Hemingray, 34 O. S. 381........... cree cence eee 88
e. Morrison, 2 Dee. Re, 6342.0.0 :ceccniaiea vesecnewauwn eee. 91, 104

y;, Wileax. 1 0 . SEL (2. BQ acca end cies eee eeeenewed we bres 37

Secor v.. Witter, 39 O. 8. 21S sccscascncarve nn cneceeennnneneea hte ake « 85
Selser v. Brock, 3 O. S. 302....... MUTANS eee Rage eae 21, 40
Serviss v. Stockstill, 830 O. S. 418... ... ccc eee c ccc cece nee e ee eeeeees 182
Sessions v. Isabel, 14 Dec, 491........ cece cere cece eee eecnene 108, 109, 113
Seymour v. Francisco, 4 Dec. Re. 12 (Clev. Rec. 9)......... ee eee eee 127
vy. Leyman, 10 0. S. 283..... 0c. cece cece cece cece eer eecneres 71

v. Mickey, 15 O, S. 515... . cece cece e cece een eees 58, 102 (2), 103

Shafer v. Reist, Ohio Dec. (Dayt.) 326........cseceeeeeereeceeceecee 143
Shaffer v. McKee, 19 O. S. 526..... ccc eer e cece tree eee eet ent eeenee 79
Shamokin Bank v. Street, 16 O. S.1.......... AVednosewesess Peo 8 wae 51
Shaul v. McCauley, 1 O. 8. U. 380 (34 Bull. 278). Esteve «..97, 103 (2), 143
Sherman y. Investment Co. 10 C, D. 33 (19 R. 26)....... cee eee eee 90
Sherwin v. Brigham, 39 O. S. 137...........-. arene gies sai avev oyby eaves 44 (2), 85
Shinkle v. Bank, 22 O, S. 5I7......ccee eee eenees sisvéh Siiscana tenet e's 8S awa 45
Simmons v. Brown, 4 Dec. Re. 29 (Clev. Ree. SB) ois: vevasrareeesiee ueseers 16, 19
vy. Savings Soc, 81 O. S. 457... cece ee eee cee eee eee eeeee 23, 174

Simms v. Curtis, Ohio Dec. (Dayt.) 334........- cece cece eee e eee e ence 146
xviii TABLE OF CASES CITED.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

‘Turnbull v. Brock, 31 O. S. 649... ... cc cee cece een c cere nce nn ee eseeene

PAGD

Silser v. Brock, 3 O. S, 302....... jada coke eawee Lawrie aes aavenet® (2)
Sisler: ‘v.. Foster; 72. :0;, S$, 48% soscccaccswvsisiaresniiatewas oe ea Sees Hehe re 55
Slacom v, Wishart, 2 O, F. D. 331........ cece eee eee eenee 68, 51, 73, 80
Slagie v:, Pow, 41.0: Si 6082. ..cseccaswranneacan abixended eae weisd 139
Slipher v. Fisher, 11 Ohio 299............cccccceeeceeereeceeeeeeee 142
Smith, In, Fe, 12 Ol BF SD). SS tise dee gated ae 8 ws tidisvesies ae eee ee 8 se) 176
Smith v. Goddard, 1 Ohio 178.... 0... ccc ccc eee ee eee rere n ene eeene 10
v. Loring, 2 Ohio 440........ ccc cee cece eevee ees veceeeerees 30 (2)

‘Vy, McKinney, (21). Oz (SFO iss ecssiisisccss, saat siisnicenghsottipe sauend: seals 42050! eees havens 16

v. 1 22, OS. 200 6 oor ssindaaiaceaa asa ks islgre*aiista hosset 16, 17

Vx Smith, 10 Dec, 489% o.<cceecds psieaeiseagas betwen eae auRns 137
Smucker vy. Wright, 2 C. D, 360 (3 R. 620)........ ce eee eee ee eee 75, 97
Somets ‘y,. Harris; 16 Ohio: 268)0355.04 cxadnjesemaae Vee tes O43 40 Ferme 23
Spaulding v, Allen, 10 C. D. 397 (19 R. 608)....... ce eee eee eee 56, 103
Spence v. Emerine, 46 O. S, 438... ... ccc eee cece ee eee tenes 14 (2)
Spier y:; Corll, 83 O;..S. 286i.e osc ccs cas sispersieaaneiod es ood s spd tive seceded 14
Sprige: vy; Bank; 2 Os MS. Deo Weiss sous aa aie aievacscdedraeiesgesewe Yes) noob sere se dead 94
Starling v. Kious, 7 Ohio (pt. 2) 238...... CCRT et tee ee eee ee ees 48
‘Starr ‘v:. Starr; 9 O; (8. Wess sd es as eoswngnweeees seas saes 24 oh sevens 51
State ‘v, Brower; 30.0.8, DOs: 22.2206 Seca sceniniadaee 6 doe Bede 6 oe whresinne 183
v. Liberty Tp. (Treas.) 22 O. S. 144... ... cece cece cee eee 10

Vi Pecks, 25 O. Si QOk acd onc cacsu arn cra wsereetow Wie «grace a he ern ee 183
Stewart v. Simpson, 1 C. D. 562 (2 R. 415).... ccc ee eee eee eee eee 82
” v;, Smith, 27 O;. Ss. S2i0.06cs-ib cw Sei twideeean eeee see eee a 118, 122
Stone: vy: Hiliott, 21. (Os. 8) QO 2c awaits sete es bw Sesiewe wears. cae ea 70, 89, 115
v. Rockefeller, 29 O. S, 625........... MSS UNC Wie Sb ab 8S a caerE 114 (2)

v. Vance, 6 Ohio 246...........0.eeeeee wae EE Se Se ew a4 BRS 71

Straus v. Insurance Co. 5 O. S. SO... cece ccc eee ete eeeeee 37
Strane v. Steawss, 40 0. B. Obs ceven ee s4saekvneeedacad tate ses cies 84
Stull v. Wilcox, 2 O. S. 570 (2)............ PiWSeu stay ahaa esate leuSGAWe WA TANS 52
Stump v. Rogers, 1 Ohio 533........ ccc cece cece cere eee et eensaeas 151
Sturges v. Colby, 4 O. FL D. 502... . ccc ccc ccc cece eee cence 43, 47
v:, “Williams; 9 Or (Si, 444. 22-0002 a iieieienaa ae aes Sale bess Sis ine ks 157

Vv. , 4 Dee, Re, 33 (Clev. Rec. 89)... . ccc cece cen cece neces 159

Stuts v: Strayer; 60 0, S; 8842.44 6 6ce00ssww sinainntewen bee o $6846 065 S00 138
Suhr v. Hoover, 8 C. D. 788 (15 R. 690)... cc cece e eee eee 72 (2), 87
Swetland v. Creigh, 15 Ohio 118................. EGR iS BREE is a EE 17
‘Taft v. Leavitt, Wright 390..........eseeee evatiay en aa roueiteaecarab cies See 135
Tarbill v. Mill Works, 1 C. D. 643 (2 R. 564) Likdaheewdnkewwawe as «...155 (2)
Taylor v. Courtright, 1 O. S. U. 390 (34 Bull. 317)..............00ceee 82
Teeters v. Lamborn, 43 O. S, 144.......... GS gr ROR lord causa te eacorace. soa eens 131, 139
‘Thompson v. Massie, 41 O. S. 307. ...... ccc cece reece cence weve eeane 154
- v. Thompson, 4 ©, 8. 883%. 0.6 )eiies cuales sade see o 8a 05 564 sie 468
y. Wright, 3 Dee. Re. 387i cveccadcasneuvaswesensau ves error 167
Thompson Nat, Bank v. Corwine, 12 0. F. D. 598............... 47 (2), 104
‘Timmerman v. Howell, 1 C. D. 342 (2 R. 27)... cece cece ee wee cece eens 114
Tisen v. Hanford, 31 O. S. 193............... ete e eee cece n ee eeens 91
Tithe ~ Kyte, 20 Oe B. 81S ecasa cc iene eaeeecenenweadans P4408 36, 93 (2)
“fod v, Wick Brow. 36 ©, 8. 870s cwsccaceesisetendaduar eens 44, 85, 92, 182
"Toohey v. Hallman, Ohio Dec, (Dayt.) 408......... cc cee ee cee ee ee naee 91
Townsend v. Bank, 2 O. S, 345......... ccc ce eee eee eeeeeee e120, 121, 167
Tracy v. Deatrick, 6 C. D, 427 (10 R. 111)...... Aaa Cew ee La Le TERS 82
‘Treon v. Brown, 14 Ohio 482........... BAUS wa eee sy sued 81, 167
‘Trowbridge v. Holcomb, 4 O. S. 38....... BOTS e eX EECENS 58.5 Gere, 134
“Tucker v, Hendricks, 15 C, D. 426........ccceeeece Bis (aindenle Gata @.Sewicdean 136, 159

144
TABLE OF CASES CITED. xix

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PAGD
Union Cent. Life Ins. Co. v. Curtis, 35 O. 8, 357......ceeeeees rakvakee LOB
Union Nat. Bank v. Wickham, 6 C. D. 790 (18 R, 685)........... 30, 34, 54
United ali Bank v. Hatch, 1 O. F. D. 312.............. 121 (2), 143, 149
phe Ov RS De BOD a eaten. suarattiia coues BON d woee ebavewee xs 121, 145
United ace Bung Mfg. Co. v. Armstrong, 6 O. F. D, 29.........000000: 94
Upjohn v. Bwing, 2 O. GS. 14...... cece ecw cee eee eeee eeveccees On, 134
Vanatta: y. Bank, 9 ©; S. 270 scc.cscsasnvsinesaseweeevesas Wk se fobreketenahs 57
Vining v. Bricker, 14 O. S. 831.......... Aare PRO BR esber oink Ba euarececonalevatece 51
Voorhees v. Hesket, 1 C. D. 1 (1 R. 1)........... desucaaliausl arenes aude anevteues evey's 178
‘Vose v. Woodford, 29 O, S. 245......... cece eee eee 120g ewe 140
Voss v. Murray, 50 O. S. 19..........0025 eas iSpisiiaiiaile Sdteitaies sw oi aida ie aie ets aha 61
Wadsworth Bank v. Daniels, 1 O. S. U. 667 (38 Bull. 17)............ 15, 173
Walker v, Stetson, 14.0, 8. 89caccnsvaveucdeasaids veenecs 122, 124, 125 126
v. 5 AD OO’. Si 4008 6 es ccd sha tteeeawae Se Sie Dare aero ea gaas 164 (2)
‘Wallave ‘vs Jewell, 21 O.. 8. UG8iwe eden cece saci evtasendaiees 26, 155, 157
"Ward, ‘Vi. WACK, 17) Os Ss 169) iisics cecid ae ohidieatnawdaasaniaws en ea Qinkrs 141
‘Wardlow® wi. Gist; °40 Oi. Sj SDs oa. ccte 258. wes sieves oh dh ce sedis fo side aha e 's w)'s gioco a0 aa 154
Watson ‘vy. Dun, (Wright: ‘Ts caicics os wean igigemeatsnee ele wa eeeete 113
Watts v. Shewell, 31 O: SS. 381.....0cesccsiecdecneaesdusvscsasas tase 132
Waynesville Nat. Bank v. Irons, 5 O. F. D. 15........... 2c eeee 54, 73 (2)
Weidler v. Kauffman, 14 Ohio 455........... ccc cc ccc ce ec cee eee eee 10
Weirick v. Bank, 16 O. S. 296....... ccc cece cece eee een eens 21, 85, 175
Weller Co. v. Gordon, 14 C. D, 407.......... cea eeee ninichndatds Bod iaTas pia ima. 82
Werk. v5 Bank, .('8) O.- Se 'SO aaa wesacie a godd tee Sos hee herd nian wissvtse See ate eo ds ee ee 112
‘Wescott:. v3. “Prices, “Wrieht: “220 i seciv sic ojes aie a eeohdaa oaneeeeres sbi ko nates aes 96
West vy. Bank, 1 0. 5S, U, 516 (86 Bull, 264)..... ccnenceeewsanaryereae 30
vs Brown, 6° 0.8. 542) Jcsicees bc sascandadeeaen tad vex esse 110, 123
Westfall v. Braley, 10 O. S. 188........ ccc cece cece cence eee r ee enee +. 133
Wheeler v. Knaggs, 8 Ohio 169......... cc cece eect eter e et eeeee 135
Whims vy. Grove, 1 C. D. 59 (1 R. 98)... cece cece ec cee eects 94
Whip v. Anderson, Ohio Dec, (Dayt.) 483......... cc. cee cee cece e eens 143
White v. Richmond, 16 Ohio 6........-. cece cece cc cece cece eeenes 17
%. Statler. 29 ©, Bo Bien secession seca vieee eeaeedy 64 65, 89
Widoe vi Webb, 20 0. Sp 48h os cess eadees teen ee eann Ohne cence ee REN Ke 81
Wilhelm v. Loop, 8 Dec. 444, 445 (8 N, P. 270)..... cc cece eee eee ee 104
vy. Snowden, Ohio Dec, (Dayt.) 435. ...... cece cece ee eee eee
Sitsaaiinaea she Sea ieee ees 47, 48 (2), 73, 74 (3), 87 (2), 104, 159
v. » Ohio Dec. (Dayt.) 502... . cece cece cee cece rene enceence 43
Wilkins v: -Bank, 81,10), S.. 665.6 cccic cies ries 6 dda steteisieegee tee ee ga ele 27
Williams vy, Bank, 1:0, PF. Dy 206.466 cee cace eer cemndeer gears 123 (2), 128
¥v:. Bosson;, 11 Ohi0 '62ccsieadsi obese ceca ne noaniewaed eae esa ee a 105
v.. Willlams; 5 Ohio: 444. sccacacessanievies saccswesewn Ga eee 151 (2)
Williamson v. Collins, 17 Ohio 354........ ccc cee c ewe cence enc eeee 26
v. Rees, 15 Ohio 572... ccc ccc ete reece ence een aeees 151 (2)
Wilson ‘v. ‘Forder, 20 0; Si 89.0.0 2 ecenweie Seen ees ween emeee ee 29
Vv. Goodin, Wright: 219... sss: scauaai eee bias wie sicsiecre esas os 132
mmccmen “Y Stewart, 24 0, S. S04, viscaneisa yess 2444 ¢eeuaveeen tees os 150
v. Thompson, Wright 333........ cc cece cece cere en evecereseee 135
Winchell v. Crider, 29 0. S. 480... .. ccc cece cscs cece ccnarsceacnnuce 89
Withoff v. Clingman, Dayt. 437....... cc cece cece cece cere cece eenes 28 (2)
Wood v. Newkirk, 15 O. S. 295... .. ccc ccc cece eee ence cree eee enee 144
y. Pugh, T Ohio (pt, 2). 156. 2... ccacceacans paviava pois osaleticnatindelaleaprs, 171,
vy. Rosendale, 10 C. D. 66 (18 R, 247)...........64, ienenns 96, 110
Woodbury v. Crum, 3 O. F. D. 581..... Hae S RRS, e He eS ooo eeeeaisiae 119 (2)
Woodruff v. Hargrave, Wright 556............. ikke trawitveedece 86.

Woodworth v. Spaffords, 2 O. F. D. 49... cece ccc eeveuvcace Suianfedesarrscens vers 27
Xx TABLE OF CASES CITED.

PAGE
Woolen v. Banker, 6 O, F. D. 56 (2)........ aioi6.8 6. orsie/e oveievessfoleleceioie eleseceleas: LO®
Work v. Christie, 6 C, D. 255 (9 R. 489).....ccccccccccccccscvscceses 103
Workman y. Wright, 33 O. S. 405.......ccccccccccccccccccccsvesessac, 40
‘ . 137
91

 

York Bank v, Asbury, 3 O. F. D. 505....cecceceeeee We Teeeeenx SE
Yount v. Groff, Ohio Dec, (Dayt.) 446.....cccccescccccsccceccescssce 80

Zuellig v. Hemerlie, 60 O, S, 27...cccsccccccccccerceccesveeedat, 152 (2)
AN ACT

To establish a law uniform with the laws of other
states on negotiable instruments.

Be it enacted by the General Assembly of the State of Ohio:

Sectidn 1. That sections 3171, 3172, 3173 and 3174 and sections
8175, 3176 and 3177, as amended March 12, 1896 (92 O. L., 61-62),
and section 3178 of the Revised Statutes of Ohio, be amended and
supplemented with the following sectional numbers as Chapter
two (2) of Division two (2) of Title one (1) of part second of the
Revised Statutes of Ohio, under the following subdivisions and re-
subdivisions, so as to read as follows:

CHAPTER II.
NeEGoTisasLeE INSTRUMENTS.
SUBDIVISION 1.
NEGOTIABLE INSTRUMENTS IN GENERAL,

Re-Subdivision 1.
FORM AND INTERPRETATION.

3171 (4898) Form of negotiable instrument.

3171a (4899) Certainty as to sum; what constitutes.
3171b (4900) When promise is unconditional.

3171c (4901) Determinable future time; what constitutes,
171d (4902) Additional provisions not affecting negotiability.
8171e (4903) Omissions; seal; particular money.

3171f (4904) When payable on demand.

3171g (4905) When payable to order.

3171h (4906) When payable to bearer.

8171i (4907) Terms when sufficient.

31717 (4908) Date; presumption as to,

3171k (4909) Ante-dated and post dated.

81711 (4910) When date may be inserted.

3171m(4911) Blanks; when may be filled.

q@)
3171n
31710
3171p
3171¢
3171r
3171s
3171t

3171u
31710

(4912)
(4913)
(4914)
(4915)
(4916)
(4917)
(4918)
(4919)
(4920)

3171w (4921)

3171¢
3171y
31712
3172

31724

31726
3172¢
3172d
3172e
3172f
31729
3172h
8172
3172)
3172k
31721

(4922)
(4923)
(4924)
(4925)

(4926)

(4927)
(4928)
(4929)
(4930)
(4931)
(4932)
(4933)
(4934)
(4935)
(4936)
(4937)

3172m (4938)

3172n

31720
3172p
3172¢
3172r
3172s
3172t
3172u
3172v

(4939)

(4940)

(4941)

(4942)
(4943)
(4944)
(4945)
(4946)
(4947)

OHIO NEGOTIABLE INSTRUMENTS.

Incomplete instrument not delivered.

Delivery; when effectual; when presumed.
Construction where instrument is ambiguous.
Liability of persons signing in trade or assumed name.
Signature by agent; authority; how shown.

Liability of person signing as agent, etc.

Signature by procuration; effect of,

Effect of indorsement by infant or corporation.

Forged signature; effect of,

Re-Subdivision 2.
CONSIDERATION,

Presumption of consideration.

Consideration; what constitutes.

What constitutes holder for value.

When lien on instrument constitutes holder for value.
Effect of want of consideration,

Liability of accommodation party.

Re-Subdivision 3.
NEGOTIATION.

What constitutes negotiation.

Indorsement; how made.

Indorsement must be of entire instrument.

Kinds of indorsement.

Special indorsement; indorsement in blank.

Blank indorsement; how changed to special indorsement.

When indorsement restrictive.

Effect of restrictive indorsement; rights of indorsee.

Qualified indorsement.

Conditional indorsement.

Indorsement of instrument payable to bearer,

Indorsement where payable to two or more persons.

Effect of instrument drawn or indorsed to a person as
cashier.

Indorsement where name is mispelled, et cetera.

Indorsement in representative capacity.

Time of indorsement; presumption,

Place of indorsement; presumption.

Continuation of negotiable character.

Striking out indorsement.

Transfer without indorsement; effect of.

When prior party may negotiate instrument.
OHIO NEGOTIABLE INSTRUMENTS. 3

Re-Subdivision 4.

RIGHTS OF HOLDER.

3172w(4948) Right of holder to sue; payment.

31722
317T2y
31722
3173

3173a
31736
3173¢
31734

3173e
3173f
31739
3173h
31734
31737
3173k
31731

(4949)
(4950)

(4951)

(4952)

(4953)

(4954)
(4955)
(4956)

(4957)
(4958)
(4959)
(4960)
(4961)
(4962)
(4963)
(4964)

3173m (4965)

3173n

31730
3173p

3173q
3173r
3173s
8173t
3173u
31730

(4966)

(4967)
(4968)

(4969)
(4970)

(4971)

(4972)
(4973)

(4974)

3173 (4975)

31732
3173y
31732
3174

3174a

(4976)
(4977)
(4978)
(4979)
(4980)

What constitutes a holder in due course.
When person not deemed holder in due course.
Notice before full amount paid.

When title defective,

What constitutes notice of defect.

Rights of holder in due course,

When subject to original defenses.

Who deemed holder in due course.

Re-Subdivision 5.
LIABILITIES OF PARTIES. .

Liability of maker.

Liability of drawer.

Liability of acceptor,

When person deemed indorser.

Liability of irregular indorser.

Warranty where negotiation by delivery, et cetera.
Liability of general indorser.

Liability of indorser where paper negotiable by delivery.
Order in which indorsers are liable.

Liability of an agent’ or broker.

Re-Subdivision 6.
PRESENTATION FOR PAYMENT,

Effect of want of demand on principal debtor. =

Presentment where instrument is not payable on de-
mand and where payable on demand.

What constitutes a sufficient presentment,

Place of presentment.

Instrument must be exhibited,

Presentment where instrument payable at bank.

Presentment where principal debtor is dead.

Presentment to persons liable as partners.

Presentment to joint debtors.

When presentment not required to charge the drawer.

When presentment not required to charge the indorser.

When delay in making presentment is excused.

When presentment may be dispensed with.

When instrument dishonored by non-payment.
31746

3174¢
31744
3174e
3174f

31749
3174h
3174¢
31747
3174k
31741

(4981)

(4982)
(4983)
(4984)

(4985)

(4986)
(4987)
(4988)
(4989)
(4990)
(4991)

3174m (4992)

3174n
31740
3174p
3174q
3174r
3174s
3174t
3174u
31740

(4993)

(4994)
(4995)

(4996)
(4997)
(4998)
(4999)
(5000)
(5001)

3174w (5002)

31742
817T4y
31742
3175

3175a@
31750
3175¢
3175d
3175e
3175f
31759
3175h
31754

3175)
3175k

(5003)
(5004)
(5005)
(5006)
(5007)
(5008)
(5009)
(5010)
(5011)
(5012)
(5013)
(5014)

(5015)

(5016)
(5017)

OHIO NEGOTIABLE INSTRUMENTS.

Liability of person secondarily liable, when instrument
dishonored.

Time of maturity.

‘Time; how computed.

Rule where instrument payable at bank.

What constitutes payment in due course.

Re-Subdivision 7.
NOTICE OF DISHONOR.

To whom notice of dishonor must be given.

By whom given.

Notice given by agent,

Effect of notice given on behalf of holder.

Effect where notice is given by party entitled thereto.
When agent may give notice.

When notice sufficient.

Form of notice.

To whom notice may be given.

Notice where party is dead.

Notice to partners.

Notice to persons jointly liable.

Notice to bankrupt.

Time within which notice must be given.

Where parties reside in same place.

Where parties reside in different places.

When sender deemed to have given due notice.
Deposit in postoffice; what constitutes,

Notice to subsequent party; time of.

Where notice must be sent, <

Waiver of notice.

Whom affected by waiver.

Waiver of protest.

When notice is dispensed with.

Delay in giving notice; how excused.

When notice need not be given to drawer.

When notice need not be given to indorser.

Notice of non-payment where acceptance refused.
Effect of omission to give notice of non-acceptance.
When protest need not be made; when must be made.

Re-Subdivision 8.
DISCHARGE OF NEGOTIABLE INSTRUMENTS.

Instrument; how discharged.
When person secondarily liable on, discharged.
31752

(5018)

3175m (5019)

3175n
31750
3175p

3175q
3175r
3175s
3175¢
3175u
3175v

(5020)
(5021)
(5022)

(5023)
(5024)
(5025)
(5026)
(5027)
(5028)

3175w (5029)

31752
3175y
31752
3176

3176a
31766
3176¢
3176d
3176e
31767

31769
3176h
31764
31767
8176K
81761

(5080)
(5031)
(5032)
(5033)
(5084)
(5035)
(5036)
(5037)
(5038)
(5039)

(5040)
(5041)
(5042)
(5043)
(5044)
(5045)

OHIO NEGOTIABLE INSTRUMENTS.

Right of party who discharges instrument.
Renunciation by holder.

Cancellation; unintentional; burden of proof
Alteration of instrument; effect of.

What constitutes a material alteration,

SUBDIVISION 2.
BILLS OF EXCHANGE,

Re-Subdivision 1.
FORM AND INTERPRETATION.

Bill of exchange defined.

Bill not an assignment of funds in hands of drawee.
Bill addressed to more than one drawee.

Inland and foreign bills of exchange.

When bill may be treated as promissory note,
Referee in case of need.

Re-Subdivision 2.
ACCEPTANCE,

Acceptance; how made, et cetera.

Holder entitled to acceptance on face of bill.
Acceptance by separate instrument.

Promise to acept; when equivalent to acceptance.
Time allowed drawee to accept.

Liability of drawee retaining or destroying bill.
Acceptance of incomplete bill.

Kinds of acceptance.

What constitutes a general acceptance,

Qualified acceptance. :

Rights of parties as to qualified acceptance,

Re-Subdivision 3.
PRESENTATION FOR ACCEPTANCE,

When presentment for acceptance must be made.
When failure to present releases drawer and indorser.
Presentment; how made.

On what days presentment may be made.
Presentment where time is insufficient,

Where presentment is excused.
6

3176m (5046)

3176n
31760

3176p
3176q
3176r
3176s
3176¢
3176u
31760

(5047)
(5048)

(50497

(5050)
(5051)
(5052)
(5053)
(5054)
(5055)

3176w (5056)

31762

3176y
31762
3177

3177a
3177b
3177c
3177d
3177e

3177f
31779

3177h
31774
3177)
3177k
31771

(5057)

(5058)
(5059)
(5060)

(5061)
(5062)
(5063)

(5064)
(5065)

(5066)
(5067)

(5068)
(5069)
(5070)
(5071)
(5072)

3177mi(5073)
3177 (5074)

OHIO NEGOTIABLE INSTRUMENTS.

When dishonored by non-acceptance.
Duty of holder where bill not accepted,
Rights of holder where bill not accepted.

Re-Subdivision 4.
PROTEST.

In what cases protest necessary.

Protest; how made.

Protest; by whom made.

Protest; when to be made.

Protest; where made.

Protest both for non-acceptance and non-payment.
Protest before maturity; where acceptor insolvent,
When protest dispensed with.

Protest where bill is lost, et cetera,

Re-Subdivision 5.
ACCEPTANCE FOR HONOR.

When bill may be accepted for honor.

Acceptance for honor; how made.

When deemed to be an acceptance for honor of the
drawer.

Liability of the acceptor for honor.

Agreement of acceptor for honor,

Maturity of bill payable after sight; accepted for honor.

Protest of bill accepted for honor, et cetera.

Presentment for payment to acceptor for honor; how
made.

When delay in making presentment is excused.

Dishonor of bill by acceptor for honor.

Re-Subdivision 6.
PAYMENT FOR HONOR,

1
Who may make payment for honor.
Payment for honor; how made.
Declaration before payment for honor.
Preference of parties offering to pay for honor.
Effect on subsequent parties where bill is paid for honor,
Where holder refuses to receive payment supra protest.
Right of payment for honor, 7
31770
3177p
3177q

3177r
8177s
31TTt

3177u
3177v

(5075)
(5076)
(5077)

(5078)
(5079)
(5080)

(5081)
(5082)

3177w( 5083)

31772
3177Ty
31772

3178

31784
31780
3178¢
3178d
3178¢e

3178f

31789

(5084)
(5085)
(5086)

(5087)
(5088)
(5089)
(5090)
(5091)
(5092)

(5093)

(5094)

OHIO NEGOTIABLE INSTRUMENTS. q

Re-Subdivision 7.
BILLS IN A SET.

Bills in sets constitute one bill.

Rights of holders where different parts are negotiated.

Liability of holder who indorses two or more parts of a
set to different persons.

Acceptance of bills drawn in sets.

Payment by acceptor of bills drawn in sets,

Effect of discharging one of a set.

SUBDIVISION 3.

PROMISSORY NOTES AND CHECKS.

Re-Subdivision 1.
FORM AND INTERPRETATION.

Promissory note defined.

Check defined.

Within what time a check must be presented.
Certification of check; effect of.

Effect where holder of check procures it to be certified.
When check operates as an assignment.

SUBDIVISION 4.
GENERAL PROVISION.

Definitions and meaning of terms.

Persons primarily liable on instrument.

Reasonable time; what constitutes,

Time, how computed; when last day falls on holiday.
Application of chapter.

Law merchant; when governs.

SUBDIVISION 5.

HOLIDAYS.
Holidays.

SUBDIVISION 6.
PATENT RIGHT NOTES.

Notes given for patent right; how to be written, etc.
8 OHIO NEGOTIABLE INSTRUMENTS.
SUBDIVISION 1.

NEGOTIABLE INSTRUMENTS IN GENERAL.

Re-Subdivision 1.

FORM AND INTERPRETATION.

\ 3171 (4898) [Form of Negotiable Instrument.] An in-
strument to be negotiable must conform to the following re-
* quirements:
1. It must be. in writing and signed by the maker or
drawer ;
2. Must contain an unconditional promise or order to
pay a sum certain in money;
3. Must be payable on demand, or at a fixed or determin-
able future time; ;
4. Must be payable to order or to bearer; and
5. Where the instrument is addressed to a drawee, he
must be named or otherwise indicated therein with reasonable
certainty.
GENERAL RULES

By the law of comity between different states, the lex loci contractus
controls as to the validity and construction of personal contracts,
though not as to the remedy or rule of evidence; nor where it clashes.
with the rights of our own citizens or the policy of our own laws.
Kanaga v. Taylor, 7 Ohio St, 134. (1857.)

‘The form of a contract is by no means decisive of its real char-
acter. The question in such case is not what did the parties call it,
but what do the facts and circumstances require the court to call it.
‘Corcoran v. Powers, 6 Ohio St. 19. (1856.)

PARTICULAR CASES.

A certificate of stock of a corporation expressed on its face to be
transferable only on the books of the company at its office, personally,
or by attorney, on surrender of this certificate, and transferred in
blank upon its back, is not a negotiable instrument.

Where such a certificate of stock is issued to the secretary of the
company, the stock standing in his name upon the books, and such
holder assigns the same to a bona fide taker thereof, by executing an.
assignment on the back blank as to the name of the assignee, and de-
livers the certificate so assigned to such assignee, and then after-
wards fraudulently obtains possession of such certificate by abstracting
FORM AND INTERPRETATION. 9

it from the president’s drawer in the safe of the company, where it
had been placed by the president, and pledges it to another for his
own debt, and the creditor accepts such pledge without inquiry, or
attempt to have the stock transferred to him on the books, such first
assignee will, in the absence of culpable negligence on his part prox-
imately contributing to the deceit, be held to be the real owner of the
certificate, although such second pledgee has acted in good faith and
on the belief that his debtor was the real owner of the stock. The
Farmers’ Bank et al. v. Diebold Safe & Lock Co. et al. 66 Ohio St.
367. (1902.)

A certificate of stock of a corporation in the usual form is an as-
surance to the world, that the person named is the owner of the num-
ber of shares of its capital stock stated therein, and that these shares
will be transferred on the books of the company to one purchasing
the same, on a surrender of the certificate with a proper assignment;
and one who purchases such certificate in the market, without knowl-
edge of any fraud in its issue, is entitled to have it transferred to him
on the books of the company; and if on demand such transfer is re-
fused, may recover of the company its value at the time of the de-
mand. C. N. O. & T. P. Ry. Co. v. Citizens’ Natl, Bank, 56 Ohio St.
351, (1897.)

The bonds of an Ohio railroad corporation, payable in New York
City to bearer, are negotiable without endorsement, although sealed
with the corporate seal; notwithstanding, that they were made in
1864, while section 1 of the act of 1820 (S. & C. 862), in relation to
negotiable paper was in force. P. C. C, & St. L. Ry. Co. v. Lynde et al,
55 Ohio St. 23. (1896.) 5

A certificate of deposit issued by a national bank for $1,145, pay-
able to the order of the depositor, on the return of the certificate, in
current funds, is, in effect, a negotiable promissory note. Bank v.
Brown, 45 Ohio St. 39. (1882.)

When the possession of a railroad passenger ticket which entitles
the holder to one first class passage between points named therein,
has been fraudulently obtained from the company, a person purchas-
ing such ticket from the holder thereof, although for value and without
notice of equities, acquires no title thereto. Frank v. Ingalls, 41 Ohio
St. 560. (1884.)

B, an officer of the city of Cleveland, having a salary payable
quarterly, made a draft on H, the treasurer of the city, for $1,125,
payable to the order of C, on the eighth day of April, 1874, and .di-
rected that the amount of the draft be charged to his salary for the
quarter then ending, and waived demand and protest, The draft
was endorsed by C to D: Held, the draft was negotiable and created
between B and C the relation of drawer and endorser. Carran et al.
v. Little, 40 Ohio St. 397. (1883.) ,

An order drawn by the clerk of the board of education, under the
statute, in favor of a third person or bearer, on the township treasurer,
10 OHIO NEGOTIABLE INSTRUMENTS.

is not negotiable, and a purchaser takes such order subject to the same
defenses that could be made against it in the hands of the payee.
State v. Treasurer, 22 Ohio St. 144. (1866.)

A certificate of deposit, issued by a banking company for $4,000 in
currency, payable, in like funds, to the order thereon of the depositor,
with interest, is a negotiable promissory note, although the term cur-
rency was regarded at the time and place of the transaction as includ-
ing the bank bills of sundry specie paying banks outside of the state of
Ohio, as well as those of the same character within the state. Howe
v. Hartness, 11 Ohio St. 449. (1856.)

A note in the following form: “June 20, 1855. For value received,
I promise to pay to the order of James A. Tipton, ninety-five dollars
in current money of Ohio, when I can make it convenient, with ten
per cent. interest till paid. Samuel Lewis (Seal),” creates a legal
liability upon the maker, and is payable within a reasonable time after
its date. Lewis v. Tipton, 10 Ohio St. 88. (1855.)

A memorandum of settlement among partners for the completion
of a canal section, ascertaining the amount due to one partner at the
date of such settlement, with a promise to pay the amount to him or
order on final estimate of the section, is not a negotiable instrument.
Weidler v. Kauffman, 14 Ohio 455. (1844.)

Contract to pay $200 in current bank notes is a contract to pay
in money, if bank notes be not tendered at the day. Smith v. Goddard,
1 Ohio 178. (1823.)

Contract to pay $2,000 in current bank notes of the city of Cincin-
nati is a contract to pay money, if the notes be neither paid nor ten-
dered at the time. Such contract, if made in writing, is not ambiguous,
and cannot be explained by parol testimony. Morris v. Edwards, 1
Ohio 189. (1823.)

An assignment of an order for a title bond, for a town lot with
a promise in it to pay $200, if the bond was not obtained in sixty days,
is not an instrument within the statute dispensing with proof, etc.
Pearce v. Bacon, Wright 627. (1834.)

A receipt for wool payable in six months at a bank is not a prom-
issory note or bill of exchange within the act dispensing with proof
in certain cases. Martin v, Butler, Wright 553. (1834.)

Under the statute of February 25, 1820, notes for money made pay-
able to any person or to bearer, are negotiable, and the title may pass
by indorsement. Fallis v. Griffith, Wright 303. (1833.)

A promissory note reciting that: “This note is given in part
pay for, and is secured by a vendor’s lien on a leasehold interest, on
his interest in a lease this day sold by him to us, the leased land
lying in Stark county, Ohio, including buildings, implements, ma-
chinery and other property used in ice-cutting business on the leased
land,” is negotiable by endorsement. Hyde v. Bank, 1 O. S. C. D. 204
(32 Bull, 317). (1894.)
FORM AND INTERPRETATION. 11

A telegram from the head contractor to a creditor in terms as
follows: “Will be home Saturday or Monday. Meantime McGregor”
(the president of the owner, a corporation) “can pay your last esti-
mate if desired,” is not an order for the payment of money, and never
having been accepted as such by the owner, no rights in favor of the
creditor arise under it. Lane v. Thomas et al. 25 0. C. C. 303. (1903.)

A chattel mortgage is a chose in action and not negotiable paper.
Gates v. Storage Co. 11 Circ. Dec. 721. (1901.)

A certificate of stock is not a negotiable instrument in mercantile
usage, although it is assignable. An assignee takes only what right
the assignor has in that which the certificate represents. C, N. O. &
Tex, P. Ry. Co. v, Third Nat. Bank, 1 Circ. Dec. 109 (1 R. 199).
(1885.)

A certificate of deposit, to draw interest if left thirty days, and
payable on return of the certificate properly endorsed, is a good prom-
issory note. Cuyahoga Steam Furnace Co. v, Lewis, 4 Re. 17. (1853.)

317la (4899) [Certainty as to Sum; What Constitutes. ]
The sum payable is a sum certain within the meaning of this
chapter although it is to be paid:

1, With interest; or,

2. By stated installments; or

3. By stated installments with a provision that upon de-
fault in payment of any installment or of interest, the whole
shall become due; or

4, With exchange, whether at a fixed rate or at the current
rate; or |

5. With costs of collection or an attorney’s fee, in case
payment shall not be made at maturity.

‘  3171b (4900) [When Promise is Unconditional.] An un-
qualified order or promise to pay is unconditional within the
meaning of this chapter, though coupled with:

1. An indication of a particular fund out of which reim-
bursement is to be made, or a particular account to be debited
with the amount; or

2. <A statement of the transaction which gives rise to the
instrument. But an order or promise to pay out of a particular

fund is not unconditional.

Where the holder of a note, who is also its payee, obtains from
the maker an order for its payment out of a fund which the latter has
deposited with another, such order neither describing the note nor
naming nor designating the holder, parol evidence is admissible in an
action between different claimants of the fund to show that the note
12 OHIO NEGOTIABLE INSTRUMENTS.

in question at the time the order was drawn and delivered was the
only one that the payee then held against the drawer of the order,
and when that circumstance is established it should be regarded as a
sufficient identification of the note for the payment of which the order
was drawn. Robbins v. Klein Co. 60 Ohio St. 199. (1889.)

Where the consent of the person in whose hands the fund was
deposited is necessary to the validity of the order to pay a note there-
from, such consent should be inferred where the note and order at-
tached together were, without objection, received by him and retained
in his possession until after other claimants of the fund had acquired
an interest in or lien against the same. In such case, the right ac-
quired by virtue of the order is paramount to the lien of the creditor,
who, after the order has been received by the custodian of the fund,
brings an action to subject the fund to the payment of the debt.
Robbins v, Klein Co. 60 Ohio St. 199. (1899.)

Where a person executes and delivers a promissory note to his
creditor, who in turn, and as a part of the same transaction, enters
into a written contract whereby he agrees to employ the maker until
the note becomes due and to extend the same and continue the maker
in employment for a further period of six months if the note is not
paid at maturity, the two papers, read together, amount to a con-
tract that the maker of the note should be employed a sufficient length
of time to enable him to pay the note with his wages, and that his
wages as earned should be applied by the payee towards its payment,
and not that the maker was entitled to draw his wages from time to
time and pay the note when it became due. Minzey et al. v. Marcy
Manufacturing Co. 25 O, C. C. 593. (1903.)

3171c (4901) [Determinable Future Time; What Consti-
tutes.] An instrument is payable at a determinable future time
within the meaning of this chapter, which is expressed to be pay-
able:

1. Ata fixed period after date or sight; or

2. On or before a fixed or determinable future time speci-
fied therein; or

8. On or at a fixed period after the occurrence of a speci-
fied event, which is certain to happen, though the time of hap-
pening be uncertain.

An instrument payable upon a contingency is not negoti-

able, and the happening of the event does not cure the defect.
Where the consent of the person in whose hands the fund was de
posited is necessary to the validity of the order to pay a note there.
from, such consent should be inferred where the note and order at-
tached together were, without objection, received by him and retained
in his possession until after other claimants of the fund had acquired
FORM AND INTERPRETATION. 13

an interest in or lien against the same. “In such case, the right ac-
quired by virtue of the order is paramount to the lien of the creditor,
who, after the order has been received by the custodian of the fund,
brings an action to subject the fund to the payment of the debt.
Robbins v. Klein Co. 60 Ohio St. 199. (1899.)

3171d (4902) [Additional Provisions not Affecting Negoti-
ability.] An instrument which contains an order or promise to
do any act in addition to the payment of money is not negotiable.
But the negotiable character of an instrument otherwise negoti-
able is not affected by a provision which:

1. Authorizes the sale of collateral securities in case the
instrument be not paid at maturity; or

2. Authorizes a confession of judgment if the instrument
be not paid at maturity; or

38. Waives the benefit of any law intended for the advan-
tage or protection of the obligor; or

4. Gives the holder an election to require something to be
done in lieu of payment of money.

But nothing in this section shall validate any provision or
stipulation otherwise illegal.

“A note to pay $200 and interest in thirty days, with a proviso, that
if the payer is not found within two hundred miles of the place of giv-
ing the note, he shall not be sued until the lapse of five years from the
date, is not prima facie unlawful or restrictive of trade. Chittenden v.
Ensign, Wright 721. (1834.)

WARRANT TO CONFESS JUDGMENT—CONSTRUCTION AND EFFECT.

A judgment taken by a partnership in its firm name upon a note
with a power of attorney to confess judgment, and releasing all
errors, after a change has taken place in its membership, and before
the filing of a new certificate, is invalid, and may be set aside by the
debtor or his assignee for the benefit of creditors; and where the
latter refuses on request of the creditors to bring suit, the creditors,
or any of them, may maintain an action to set it aside for the benefit
of themselves and all other creditors of the debtor. Cobble et al. v.
Bank, 63 Ohio St. 528. (1900.)

A promissory note with warrant of attorney to confess judgment
thereon should be so interpreted as to give effect to the intention of
the parties; and a judgment thereon confessed against the makers is
not void for want of jurisdiction of their persons if the terms of the
warrant indicate an intention to authorize it, notwithstanding a failure
to fill blanks intended to be filled with words giving fuller expres-
sion to that intention. Bank v. Trout, 58 Ohio St. 347. (1898.).
'

14 OHIO NEGOTIABLE INSTRUMENTS.

A warrant of attorney to confess judgment must be strictly con-
strued. Spence v. Emerine, 46 Ohio St. 433. (1889.)

A warrant of attorney attached to a sealed note payable to the
payee or bearer, authorized “any attorney at law, at any time after the
above sum becomes due, with or without process, to appear for us in
any court of record in the state of Ohio, and confess judgment against
us, for the amount then due thereon, with interest and costs, and to
release all errors and the right of appeal:” Held—(a) Such warrant
of attorney conferred no authority to confess judgment against the
maker of the note in favor of the holder to whom the payee had trans-
ferred the note by delivery. (b) In an action on the note, it was
error to render judgment against the maker thereof in favor of such
holder, by virtue of such warrant of attorney, without summons or
other notice to the maker of the bringing of the action. Ib.

A power of attorney, attached to a sealed note payable to bearer,
authorizing the waiving of process and the confession of judgment in
favor of the holder of the note, may be executed in favor of an equi-
table owner and holder, to whom the note may be transferred by de-
livery, but without indorsement thereon. Clements v. Hull, 35 Ohio
St. 141. (1878.)

Where, in a promissory note, payable at a future day, a warrant
of attorney is incorporated, authorizing any attorney to appear for
the maker in any court, and confess a judgment for the sum named in
the note, etc., such warrant of attorney does not authorize the entry
of an appearance, etc., before the maturity of the note; and an ap-
pearance prematurely entered by virtue of such warrant, confers on
the court in which it is entered no jurisdiction of the person of the
maker. Spier v. Corll, 33 Ohio St, 236. (1877.)

A warrant of attorney to confess judgment must be strictly con-
strued, and the authority thereby conferred cannot be exercised beyond
the limits expressed in the instrument. Cushman vy. Welsh, 19 Ohio
St. 536. (1869.)

A warrant of attorney attached to such sealed note or bill, author-
izing a judgment to be confessed thereon “in favor of the legal holder”
thereof, does not authorize a confession of judgment on such note in
favor of the owner and holder thereof, without an indorsement thereon
by the payee transferring the legal title to owner and holder of the
note. Ib.

Though the warrant of attorney be not available to him, the equi-
table owner and holder of such note may, under the provisions of the
code, prosecute an action thereon in his own name. Ib.

Whether a warrant of attorney to confess a judgment upon a
negotiable note, annexed to the note and forming a part of the same
instrument, and which purports to authorize the confession of a judg-
ment in favor of any holder of the note at any time after the same
becomes due, is legally operative to authorize the confession of a judg-
ment in favor of an indorsee of such note—quaere? But, if a judgment
FORM AND INTERPRETATION. 15

on such note be entered on confession of an attorney acting under
such warrant, in favor of an indorsee of the note, and, at the same
term, the defendants in the judgment consent to the dismissal of such
motion: Held, that they will not be afterward allowed, on error, to
allege a want of jurisdiction in the court, of the persons of the de-
fendants. Marsden v. Soper, 11 Ohio St. 503. (1860.)

Where the right of election to pay in money or the articles, at the
option of the debtor, exists, and the articles are not delivered, the
plaintiff recovers the amount of the debt and interest; but if no such
election is expressed or implied, the plaintiff is entitled to the market
value of the articles, with interest. Cleveland & Pittsburg R. R, Co.
v. Kelley, 5 Ohio St. 180. (1855.)

A warrant of attorney to confess a judgment executed by the prin-
cipal and surety on a note or Dill, although in its terms authorizing a
joint judgment against principal and surety, may be a good power to
take a judgment against the principal alone. Huntington v. Finch, 3
Ohio St. 445. (1854.)

A power of attorney to confess judgment, attached to a note, and
forming a part of the same instrument, does not destroy the negotia-
bility of the note. Osborn v. Hawley, 19 Ohio 130. (1850.)

Such power of attorney is not negotiable, and when the note is
transferred becomes invalid and inoperative. Ib.

Giving judgment notes to several creditors at the same time, de-
livering the same to one person representing these creditors, and
therefore enuring to the benefit of all creditors under Sec. 6344, Rev.
’ Stat., the whole being one transaction, the judgments and levies there-
under of other creditors thus preferred will also enure to the benefit
of all creditors. Wadsworth Bank v. Daniels, 1 O. S. C. D. 667 (38
Bull. 17). (1897.)

Cognovit notes should be very strictly construed, and under the
warrant of attorney to confess judgment, a judgment can be rendered
only against the persons designated. Thus, on such a note signed
“Wickham & Co., H. C. Post, Geo. E, St. John,” a judgment against in-,
dividuals composing the firm of Wickham & Co., on the strength of
allegations in a petition, is unauthorized; and the same is true of a
Judgment against “Halsey C. Post.” A judgment against “George HE.
St. John,” under the note in question signed “Geo. EB. St. John,” is not
invalid, but a judgment in favor of “The Farmers’ National Bank of
Mansfield, Ohio,” on a cognovit note running to “The Farmers’ Na-
tional Bank” is irregular and void. Mansfield Savings Bank v. Post,
12 Cire. Dec. 577. (1893.)

The making of an agreement by a corporation with a bank at the
time of procuring a loan, that in the event the corporation should be
compelled to make an assignment, the bank should be notified in time
to reduce its cognovit note to judgment and levy execution before the
deed of assignment was filed, renders invalid the execution thereafter
levied in accordance with the agreement and just before the making of
16 OHIO NEGOTIABLE INSTRUMENTS.

the assignment. Benedict v. Bank, 10 Cire. Dec, 505 (19 R. 408).
(1900.) ks

A power of attorney attached to a note “authorizing any attorney
at law at any time after the above sum becomes due, with or without
process, to appear for us in any court of record in the state of Ohio,
and confess judgment against us for the amount then due thereon,”
etc., is not negotiable and confers no authority to confess in favor of
an indorsee or transferee. Ream v. Merchants’ Nat. Bank, 1 Circ.
Dec. 351 (2 R. 43). (1886.)

When a warrant of attorney authorizes a judgment at “any time
hereafter” to be confessed “in favor of the holder of this note,” such
confession of judgment may be made to one whom the note has been
transferred. Packer v. Davis, 11 Dec. 801. (1895.)

A power of attorney to confess judgment attached to and forming
part of the same instrument, does not destroy the negotiability of the
note. McClure v. Bowles, 5 Dec, 288 (5 N. P. 327). (1893.)

A power of attorney to confess judgment attached to and forming
part of the same instrument, is not negotiable, and when the note is
transferred becomes invalid and inoperative. Ib.

A power of attorney to confess judgment on a note payable to
bearer in favor of the holder thereof is available to the person who
may be the holder of the note at the time judgment is rendered, al-
though not the original holder. or payee. Simmons v. Brown, 4 Re. 29.

817le (4903) [Omissions; Seal; Particular Money.] The
validity and negotiable character of an instrument are not af-
fected by the fact that:

1. It is not dated; or

2. Does not specify the value given, or that any value has
been given therefor; or

3. Does not specify the place where it is drawn or the
place where it is payable; or

4. Bears a seal; or

5. Designates a particular kind of current money in which
payment is to be made,

But nothing in this section shall alter or repeal any statute
requiring in certain cases the nature of the consideration to be

stated in the instrument.

A promissory note made on March 18, 1862, payable one year after
date, “to be paid in gold or silver coin, if required,” could not, after
maturing, payment in coin being required, be discharged by the pay-
ment of its face in legal tender notes, under the act of congress of
February 25, 1862, making the United States treasury notes a legal
tender for the payment of debts. Phillips v. Dugan, 21 Ohio St. 466,
approved and followed. Smith v. McKinney, 22 Ohio St. 200. (1871.)
FORM AND INTERPRETATION. 17

The release of the maker by the payee, after maturity, from his
obligation to pay such note in coin, is a sufficient consideration to sup-
port a new promise to pay the face of the note and fifty per cent. in
addition, in legal tender notes, it appearing that the premium on gold
at the time of making the new promise was more than fifty per cent.
on: legal tender notes. Ib.

In an action brought on a promissory note for a specified number
of dollars, payable by its terms in gold or silver, to recover the amount
of the note and the premium on coin of that amount in United States
treasury notes: Held, (1) A recovery cannot be had for the market
value of the amount of coin called for in the note, in legal tender
currency. (2) A judgment for coin should be rendered for the
amount found to be due on the note. (3) Inasmuch as a general
judgment for such amount might be satisfied by payment of the same
amount in legal tender notes, such judgment not being made payable
in coin, is erroneous. (4) A judgment for coin, by necessary impli-
cation, requires that coin should be made on final process issued there-
on for the satisfaction of the judgment. (5) In actions requiring
judgments payable in coin, the judgment for costs must be general
so that the costs may be paid in legal tender notes. Phillips v. Dugan,
21 Ohio St. 466. (1871.)

Mere silence on the part of a creditor as to the medium of pay-
ment is not conclusive evidence of waiver. Jennings v. Mendenhall,
FT Ohio St. 258. (1857.)

A promissory note payable to A B, or order, for $500 in current
funds of the state of Ohio, is a note for a sum certain, within the mean-
ing of the statute, and negotiable. White v. Richmond, 16 Ohio 6.
(1847.)

A promissory note for $200, payable in current Ohio bank notes,.
is for a sum of money certain, and negotiable. Swetland v. Creigh,
15 Ohio 118. (1846.) :

Notes under seal, for the payment of money, negotiated before due,
4n good faith are to be regarded as commercial paper, and the makers
eannot avail themselves of any breach of confidence, by one of the
parties in filling them up and putting them in circulation. Bank of
$t. Clairsville v. Smith, 5 Ohio 222. (1831.)

The term “currency” means current money, where this interpre-
tation is not controlled by the positive terms of the contract. Dugan
v. Campbell, 1 Ohio 115. (1823.)

A note with a scrawl or seal of wax, although without a testatum
clause describing it as under seal, is a sealed note. Michenor v. Kin-
ney, Wright 460. (1833.)

A note with a seal affixed will be held a sealed instrument, al-
though no mention is made in the body or testatum clause of its being
sealed. Gazzam v. Insurance Co. Wright 215. (1833.)

Attaching seal does not vitiate note; note, if substantially de-
scribed, may be read. Ford v. Haft, Wright 118. (1832.)

s

2
18 OHIO NEGOTIABLE INSTRUMENTS.

31717 (4904) [When Payable on Demand.] An instrv-
ment is payable on demand:

1. Where it is expressed to be payable on demand, or at
sight, or on presentation; or

2. In which no time for payment is expressed.

Where an instrument is issued, accepted, or indorsed when
overdue, it is, as regards the person so issuing, accepting, or
indorsing it, payable on demand.

A note specifying no time of payment, but providing for interest
at the rate of ten per cent. from date, interest to be paid annually, is,
in legal effect, payable immediately. Jones v. Brown, 11 Ohio St.
601. (1860.)

A promissory note for money, payable on demand, is due upon
delivery. Hill v. Henry, 17 Ohio 9. (1848.)

Where a note is payable on demand, it is not due until demanded.
Gordon v. Preston, Wright 341. (1833.)

A promissory note payable “on demand after date” is due, may
be sued on at once without first making demand of payment. Rigley
v. Watts, 8 Circ. Dec. 229 (15 R. 645). (1898.)

Commencement of suit is a sufficient demand on a note payable
on demand. Ib.

3171g (4905) [When Payable to Order.] The instru-
ment is payable to order where it is drawn payable to the order
of a specified person or to him or to his order. It may be drawn
payable to the order of:

A payee who is not maker, drawer, or drawee; or
The drawer or maker; or

The drawee; or

Two or more payees jointly; or

One or some of several payees; or

The holder of an office for the time being.

Where the instrument is payable to order the payee must
be named or otherwise indicated therein with reasonable cer:
tainty.

3171h (4906) [When Payable to Bearer.] The instru-
ment is payable to bearer:

1. When it is expressed to be so payable; or

2. When it is payable to a person named therein or bearer;
or

SON eS Go ha
FORM AND INTERPRETATION. 19

3. When it is payable to the order of a fictitious or non-
existing person, and such fact was known to the person making
it so payable; or

4, When the name of the payee does not purport to be the
name of any person; or

5. When the only or last indorsement is an indorsement
in blank.

M, for the purpose of defrauding the general government out of
its revenues, assumed the name of C, and in that name purchased
goods of W D & Co.,, in Canada, on credit, and smuggled them into
the United States at Detroit. From Detroit he shipped them to C H
& Co., at Cincinnati, to be sold on commission; at the same time
advising C H & Co., by letter, postmarked at Detroit, signed C, and
requesting them to remit the proceeds. C H & Co, having sold the
goods, purchased a bill of exchange from the defendants, bankers at
Cincinnati, on their correspondent at New York, for the net amount
of the proceeds of the goods, and having endorsed it, payable to C

* or order, remitted the bill by mail to Detroit, addressed to C, where
M received it, and’ having endorsed it in blank, thus: C,/ delivered to
W D & Co., in payment for the goods, from whom the~plaintiffs re-
ceived it in good faith, for full value and before dishonor. Afterwards
CH & Co., under the revenue laws of the United States, were com-
pelled to pay to the general government the full value of the smuggled
goods; and at their instance, the bill was dishonored when pre-
sented to the drawee for payment. Neither W D & Co., nor C H &
Co., had any knowledge of M other than the above transaction, nor
that his name of C was assumed, nor of his fraudulent practices
against the general government. C H & Co., in their correspondence
supposed that C was the true name of their correspondent. W D &
Co., at the time they received the bill, had no knowledge of the cor-
respondence between C H & Co., and M. In a suit on this bill by the
holders against the drawers: Held, that the defendants are estopped
from denying that the legal title to the bill of exchange is in the
plaintiffs, and from setting up as a defense against the plaintiffs, the
fraud practiced by M upon CH & Co. Forbes & King v. Espy, Heidel-
bach & Co, 21 Ohio St. 474. (1872.)

A note in which the payee’s name is blank is payable to bearer.
Simmons v. Brown, 4 Re, 29.

8171i (4907) [Termse When Sufficient.] The instrument
need not follow the language of this chapter, but any terms are
sufficient which clearly indicate an intention to conform to the
requirements hereof,

8171j (4908) [Date; Presumption as to.] Where the
instrument or an acceptance or any indorsement thereon is dated,
20 OHIO NEGOTIABLE INSTRUMENTS.

such date is deemed prima facie to be the true date of the mak-
ing, drawing, acceptance or indorsement as the case may be.

3171k (4909) [Ante-Dated and Post-Dated.] The instru-
ment is not invalid for the reason only that it is ante-dated
or post-dated, provided this is not done for an illegal or fraudu-
lent purpose. The person to whom an instrument so dated is
delivered acquires the title thereto as of the date of delivery.

31711 (4910) [When Date may be Inserted.] Where an
instrument expressed to be payable at a fixed period after date
is issued undated, or where the acceptance of an instrument pay-
able at a fixed period after sight is undated, any holder may
insert therein the true date of issue or acceptance and the instru-
ment shall be payable accordingly. The insertion of a wrong
date does not avoid the instrument in the hands of a subsequent
holder in due course; but as to him, the date so inserted is to be
regarded as the true date.

3171m (4911) [Blanks; When may be Filled.] Where
the instrument is wanting in any material particular, the person
in possession thereof has a prima facie authority to complete it
by filling up the blanks therein. And a signature on a blank
paper delivered by the person making the signature in order
that the paper may be converted into a negotiable instrument
operates as a prima facie authority to fill it up as such for any
amount. In order, however, that any such instrument when
completed may be enforced against any person who became a
party thereto prior to its completion, it must be filled up strictly
in accordance with the authority given and within a reasonable
time. But if any such instrument after completion is negotiated
to a holder in due course, it is valid and effectual for all purposes
in his hands, and he may enforce it as if it had been filled up
strictly in accordance with the authority given and within a
reasonable time.

Where a party depositing money in one bank to the credit of an-
other bank, but without the knowledge of the latter, took a letter from
the former bank addressed to the latter, advising it of the deposit, and
afterward delivered the letter to a third person, with his own name in-
dorsed in blank thereon, for presentation to the bank to whose credit
the deposit was made: Held, that, as between the depositor and the

latter bank, in the absence of notice to the contrary, the bearer of the
letter had authority to control the fund, and, for that purpose, to write
a

FORM AND INTERPRETATION. 21

a check or order over the blank signature. Weirick v. Mahoning Bank,
16 Ohio St. 296. (1865.)

One who intrusts his name in blank to another, to procure a dis-
count, is liable to the full extent to which such other may see fit to
bind him, when the paper is taken in good faith, without notice, actual
or constructive, that the authority given has been exceeded. Fullerton
v. Sturges, 4 Ohio St. 529. (1855.)

Such blank signature has the effect of a general letter of credit;
and the rule is founded as well upon that principle of general juris-
prudence which casts the loss, when one of two innocent persons must
suffer, upon him who has put it in the power of another to do the in-
jury, as also upon the rule of the law of agency which makes the
principal liable for the acts of his agent, in violation of his private in-

. structions, when he has held the agent out as possessing more enlarged
authority. Ib.

Where a joint and several promissory note in blank is signed by
several persons as sureties and delivered to the principal debtor, to be
by him filled up and given to the payee; if an illegal rate of interest
be agreed upon between the principal debtor and the creditor and in-
corporated in the amount for which the note is made payable, the con-
tract is voidable to the extent of the usury only, and create a binding
obligation on the part of the surety for the principal and legal in-
terest, whether the usury be inserted with the knowledge and con-
sent of the surety or not. Selser v. Brock, 3 Ohio St. 302. (1854.)

A blank indorsement may be filled at any time in form to oblige
the indorser as principal, or the court may regard it as so filled up.
Bright v. Carpenter, 9 Ohio 139. (1839.)

Where signatures are obtained to a blank paper, to be filled up for
money, upon false pretenses, and are delivered in blank in payment
of a precedent debt, and the note written by the creditor’s agent, the
securities are not bound. Riley v. Johnson, 8 Ohio 526. (1838.)

An obligation to pay money written over a signature and seal
made in blank is not operative. Ayres v. Harness, 1 Ohio 368. (1824.)

If there is an indorsement in blank on a note and the holder write
over the signature a special guarantee, he will not be permitted to
abandon that while it is subsisting and recover on the common counts
—he must abide by the contract he has chosen to make. Crandall v.
Cuyler, Wright 378. (1833.)

8171n (4912) [Incomplete Instrument not Delivered.]
Where an incomplete instrument has not been delivered it will
not, if completed and negotiated, without authority, be a valid
contract in the hands of any holder, as against any person whose
signature was placed thereon before delivery.

31710 (4913) [Delivery; When Effectual; When Pre-
sumed.] Every contract on a negotiable instrument is incom-
22 OHIO NEGOTIABLE INSTRUMENTS.

plete and revocable until delivery of the instrument for the
purpose of giving effect thereto. As between immediate parties,
and as regards a remote party, other than a holder in due course,
the delivery, in order to be effectual, must be made either by or
under the authority, of the party making, drawing, accepting
or indorsing, as the case may be; and in such ease the deliv-
ery may be shown to have been conditional, or for a special
purpose only, and not for the purpose of transferring the prop-
erty in the instrument. But where the instrument is in the
hands of a holder in due course, a valid delivery thereof by all
parties prior to him so as to make them liable to him is con-
clusively presumed. And where the instrument is no longer
in the possession of a party whose signature appears thereon, a
valid and intentional delivery by him is presumed until the con-
trary is proved.

A delivery to a donee, of a deposit book issued by a savings bank
containing entries of deposits to the credit of the donor, with the in-
tention to give the donee the deposits represented by the book, and ac-
companied with appropriate words of gift, is a sufficient delivery to
constitute a valid gift of such deposits, without assignment or trans-
fer in writing. Polley v. Hicks, 58 Ohio St. 218. (1898.)

Delivery is essential to the validity of an assignment. Leonard
v. Kebler, 50 Ohio St. 444. (1893.)

K being about to take his own life, drew up and signed an instru-
ment purporting to convey to L and two others named therein, as
security for debts by him owing to them severally, certain articles of
personal property, also notes and choses in action which were then
held by another as collateral security for a debt. The instrument was
not executed in pursuance of any arrangement with the persons named
therein, or either of them, and was without the knowledge of either.
It was enclosed in an envelope addressed to L, who was a relative of
‘K and then a member of his family. In another envelope addressed to
her, was a letter of farewell, and the two envelopes were surrounded
by a rubber band. K had, after the signing of the papers, several op-
portunities to deliver them to L but did not do so nor speak of them.
After he had taken the poison, and when he was unable to speak and
nearly unconscious, L entered his room, and, finding the paper lying
by his side on the bed, took them into her possession and read them,
K had no knowledge of this. He did not regain consciousness, and
‘died some four hours afterward: Held, that the persons named in the
instrument took no title to the property described by reason of the
.attempted assignment. Ib.

G was a man of advanced age, having a wife and daughters by a
‘first wife, and, by the present wife, a son, with whom he boarded; his
FORM AND INTERPRETATION. 23

property consisted partly of a farm and stock thereon, but mostly of
promissory notes of various amounts; before his last sickness, he had
expressed a desire “that his children should have his notes and his
son should have his farm.” On the morning of the day of his death,
and in the presence of a daughter’s husband, herself and a sister, G
called the daughter and said to her: ‘My notes are in a little box in
the bureau there; I want you to take them and divide them equally
among you children.” He told her to get the key to the box and she
got the key and tried it in the box, and gave the key to her husband
for safe keeping. After. his death intestate, she took the box and did
not divide the notes, but returned them to the administrator, and they
were appraised and held as part of the estate. In an action by the
daughters, claiming for themselves and the son, the notes and their
proceeds, as against the administrator and the widow: Held, (1)
These facts do not show such a delivery as constitutes a valid gift
causa mortis. (2) These notes and their proceeds are assets of the
estate, and the widow is entitled to her proper part thereof. Gano v.
Fisk, 43 O. S. 462. (1885.)

Whether an equitable interest in an instrument for the payment
of money passes by delivery—whether such instrument be negotiable
or not, or be indorsed or not—depends solely on the intention of the
parties. But a secret intention, inconsistent with the positive acts of
the party, is of no avail. Miles v, Reiniger, 39 Ohio St. 499. (1883.)

The drawer of a check delivered to the payee, intending thereby
to give to the payee the fund on which the check was drawn: Held,
that until the check was either paid or accepted, the gift was incom-
plete; and that in the absence of such payment or acceptance, the death
of the drawer operated, as against the payee, as a revocation of the
check. Simmons v. Society, 31 Ohio St. 457. (1877.)

To constitute a valid gift of a note, either inter vivos or causa
mortis, a delivery, either actual, constructive or symbolical, is es-
sential. Phipps v. Hope, 16 Ohio St. 586. (1866.)

Promissory notes payable to the wife or bearer, dum sola, and re-
maining in possession of the husband during coverture, without such
suit or assignment, will, at the death of the wife, fall to her heirs.
Dixon v. Dixon, 18 Ohio 113. (1849.)

A promissory note cannot be given in evidence without proof of
fis execution, unless specially declared upon. Somers v. Harris, 16
Ohio 263. (1847.)

An assignment endorsed upon a note, and the note retained by the
assignor until his death, vests no interest in the assignee. Clark v.
Boyd, 2 Ohio 56. (1825.)

An indorsement without date and in the handwriting of a deceased
husband, of a note and mortgage securing the same, found among the
private papers of the deceased, transferring both to his wife, in case of
his death, does not pass the note and mortgage to his wife, there being
no delivery of the gifts before his death. Nor will the title thereto
24 OHIO NEGOTIABLE INSTRUMENTS.

pass to her because of a provision in his will cutting in two the be
quest made to her in lieu of dower in his will and another “not to dis-
turb or interfere’ with gifts to his wife. Hadlow v. Beavis, 1 O, S.
C. D. 857 (42 Bull. 256). (1899.)

Delivery need not be specially pleaded in an action to recover
on a negotiable instrument, as it is, as a general rule, presumed from
the mere possession of the note; the word “promise” in the petition
implies delivery, and, in such event, an answer alleging that defendant
did not deliver the note to plaintiff does not set up new affirmative
matter calling for a reply. Bode.v. Werner, 16 Circ. Dec, 206. (1902.)

A prima facie case in favor of plaintiff is made out by his offer-
ing in evidence a negotiable promissory note, and the burden of proof
is then cast upon the defendant; and where the latter offered no evi-
dence, the plaintiff is entitled to a verdict and judgment in his favor.
Bode v. Werner, 16 Circ. Dec. 206. (1902.)

3171p (4914) [Construction Where Instrument is Am-
biguous.] Where the language of the instrument is ambiguous
or there are omissions therein, the following rules of construc-
tion apply: :

1. Where the sum payable is expressed in words and also
in figures and there is a discrepancy between the two, the sum
denoted by the words is the sum payable; but if the words are
ambiguous or uncertain, reference may be had to the figures to
fix the amount. f

2. Where the instrument provides for the payment of in-
terest without specifying the date from which interest is to
run, the interest runs from the date of the instrument, and if
the instrument is undated, from the issue thereof.

3. Where the instrument is not dated, it will be considered
to be dated as of the time it was issued.

4. Where there is a conflict between the written and
printed provisions of the instrument, the written provisions
prevail.

5. Where the instrument is so ambiguous that there is
doubt whether it is a bill or note the holder may treat it as
either at his election.

6. Where a signature is so placed upon the instrument that
it is not clear in what capacity the person making the same in-
tended to sign, he is to be deemed an indorser.
FORM AND INTERPRETATION. 25

7. Where an instrument containing the words ‘‘I promise
to pay’’ is signed by two or more persons, they are deemed to
be jointly and severally liable thereon.

A promissory note for the payment to the payee of a certain sum
of money “payable at Northern Bank, Covington, Ky.,” signed by the
principal debtor in Ohio, and before delivery, which was in Ohio,
signed in blank on the back of another party in Kentucky and by one
in Pennsylvania, is a contract by all the parties thereto that the con-
tract shall be performed in Kentucky; and as to its ‘nature, validity,
interpretation and obligation is governed by the laws of that state.
Coal & Coke Co, v. Coal & Coke Co. et al. 69 Ohio St. 351. (1904.)

In a promissory note, made payable one year after date, there was
the following clause: “The above to be at ten per cent. interest an-
nually:” Held, that the word “annually,” in this connection, is to be
understood as retating to, and defining the rate of-interest, and is
equivalent to the words per annum; and that the clause is not a stipu-
lation for the annual payment of interest.

The interlining of the word “paid” before the word “annually,”
in the clause aforesaid, is a material alteration of the note. Patterson
v. McNeeley, Exr. 16 Ohio St. 348. (1865.)

When an instrument is open to two constructions—the one con-
sistent and the other repugnant to law, or the one will give effect to
the whole instrument and the other will destroy a part—the former
must always be adopted. Pruden v, Pruden, 14 Ohio St, 251. (1862.)

Suit was brought on an instrument of the following tenor: “Due
H K, or order, the sum of $92 dollars, on demand, value received.”
There was no averment in the petition, nor proof on the trial of a de-
mand of payment before suit brought: Held, that under the statute
of 1824, “fixing the rate of interest,” the plaintiff was entitled to re-
cover interest from the date of the instrument. Darling v. Wooster,
9 Ohio St, 518. (1859.)

Such a construction should be put upon the contract as will pre-
vent its failure, and give effect to the obligation of each of the parties
appearing on it at the time the contract itself takes effect. Green-
ough v. Smead, 3 Ohio St. 415. (1854.)

Whenever the obligation of a party appearing upon the back of a
negotiable paper can, at that time, take effect as an indorsement, it
should be held to do so as conforming more nearly to the general in-
tention of parties assuming that position upon it. Ib.

In the application. of these principles, when the name of a stranger
is put upon the back of a note intended for a payee, and to give it
credit with him, as such person cannot be charged as an indorser,
effect should be given to his undertaking by holding him liable as a
surety or guarantor. Ib,

The mere indorsement upon a note of a stranger’s name in blank,
is prima facie evidence of guaranty. But if made at the time of execu-
26 OHIO NEGOTIABLE INSTRUMENTS.

tion by the other party, or in pursuance of an intention to become re-
sponsible, it is an original undertaking. The rule is the same whether
the instrument be negotiable or not. Champion v. Griffith, 13 Ohio
St. 228. (1844.)

Where a note is payable in cloth, “at a fair wholesale factory
price,” parol evidence is admissible to show that a certain scale of
prices was intended different from the actual wholesale prices in the
market. Barrett v. Allen, 10 Ohio 426. (1837.)

A note for eight hundred and sixty, not saying what, concludes
thus: “For value received, $860,” is a good note for that sum. McCoy
v. Gilmore, 7 Ohio (pt. 1) 268. (1835.) i

A written contract is not to be explained by parol, except as to
some latent ambiguity. Edwards v. Richards, Wright 597. (1834.)

If the intent with which an indorsement was made be doubtful, it
may be explained by parol. Dibble v. Duncan, 2 O. F. D, 145. (1841.)

JOINT OBLIGATIONS, ETC,

The joint note of husband and wife is the valid obligation of the
husband alone, although the wife is not liable at law thereon. Mc-
Clelland v, Bishop, 42 Ohio St. 118. (1884.)

A promissory note in the form, “I promise,” etc., and signed by
several parties as makers, is joint as well as several. Wallace v.
Jewell, 21 Ohio St. 163. (1871.)

The co-signers of a note, joint and several in its terms, which fell
due in 1807, and on which suit was severally instituted in 1814 against
another co-obligor, and judgment recovered, and afterward suffered to
lie dormant sixteen years, and then revived, and finally paid thirty-
eight years after it became payable, cannot be compelled to contribute.
Williamson v. Collins, 17 Ohio 354. (1848.) The case of Bigelow v.
Bigelow, 4 Ohio 138, does not apply to cases of joint and several notes,
where only one of the makers becomes trustee to a payee. Rossman
v. McFarland, 9 Ohio St. 369. (1859.)

Where a stranger to a note payable in clocks, at the time of the
execution wrote upon the back and signed these words: “I guarantee
the fulfillment of the within contract:” Held, that the instrument
with its indorsement was a joint contract, and that the parties might
be sued jointly upon it. Gale v. Van Arman, 18 Ohio 336. (1849.)

Collateral undertaking by one, to which another adds: “I make
myself jointly responsible,” is not a joint contract. Camp v. Janes,
6 Ohio 418. (1834.)

A written instrument in the form following is a joint and several
promissory note: “I hereby certify to have received of Mr. Dan Deiss
as a loan for three months $500. Columbus, Ohio, August 12, 1872,
Oscar Orlopp. Emillie Orlopp;’”’ and an action thereon may be main-
tained against one of the makers. Orlopp v, Schueller, Admr. 16 Circ.
Dec. 127. (1903.) Reversed on another ground, 72 O, S. 41. (1905.)
FORM AND INTERPRETATION. 27

SUIT—EVIDENCE—JUDGMENT, ETC.

Where the holder of a joint and several obligation elects to sue
one of the obligors who is only a surety thereon, it is not competent
for the defendant by cross petition or otherwise, to bring in his prin-
cipal for the purpose of having the relation of principal and surety
certified under Sec. 449 of the code, although the holder knew that such
relation existed. Wilkins v. Bank, 31 Ohio St. 565. (1877.)

The election of the creditor is not conclusively determined by the
commencement of a joint action, and becomes fixed only upon the re-
covery of judgment against all joint makers of the instrument. Clinton
Bank v. Hart, 5 Ohio St. 38. (1855.) Until one judgment, either
joint or several, is rendered for or against each of the makers of a
joint and several instrument, no merger of the several liabilities of
any one of them, as to whom no judgment has been rendered, takes
place; and a separate action may be sustained thereon. Ib.

The commencement of a joint action, against all the makers of a
joint and several instrument, in which process was only served upon a
part, and judgment against but one, is no bar to a separate action
against one not served with process. In such case, the creditor has
his election to sue out a scire facias against such several maker, to
make him a party to the judgment against the others, or to commence
and prosecute a separate action against him. Ib.

A judgment for or against one of the several makers of a joint
obligation is a bar to an action afterward brought against another.
But not so if the obligation is joint and several, In such case, the
creditor has the election to treat the obligation as joint or several, and
he may sue and recover against each one of the makers separately or
all jointly; but he cannot do both; and hence the recovery of a joint
judgment is a bar to separate actions, and separate judgments equally
so to a joint action. Ib.

The principal in a note, sued jointly with his sureties, who suffers
a default and against whom a separate judgment is entered, is a com-
petent witness for such sureties upon the issue joined between them
and the plaintiff. State Bank of Ohio v. Russell, 1 Ohio St. 313.
(1853.)

In a suit upon a joint and several promissory note, made by A,
B, C and D, one of the makers, not served with process, is incompetent
as a witness for the defendants, upon whom process was served. Arm-
strong v. Deshler, 12 Ohio 475. (1843.)

Where the note is joint, the suit must be brought against all, and
a joint responsibility must be shown, unless one or more of the prom-
isors are discharged by infancy or operation of law. Woodworth v.
Spaffords, 2 O. F. D. 49. (1840.)

In an action upon a joint and several promissory note, the prin-
cipal debtor may elect to have his separate claim against the creditor
set off against the joint promissory note, which is nothing more than
28 OHIO NEGOTIABLE INSTRUMENTS.

a security for the principal’s separate debt. Withoff’s Admr. v. Cling-
man, Ohio Dec. (Dayt.) 437. (1872.)

In an action upon a joint and several promissory note, the surety
may plead as set-off such claim of the principal debtor against the cred-
itor in a joint answer of both obligors on the note. Ib,

Where in an action upon a joint and several promissory note, the
court refuses the request to certify on the records which are sureties,
and there is a serious controversy between the defendants upon that
fact, the parties will be relegated to determine such controversy to a
suit brought especially for that purpose. Groby & Co. v. Lamme,
Ohio Dec. (Dayt.) 153. (1872.)

3171q (4915) [Liability of Persons Signing in Trade or
Assumed Name.] No person is liable on the instrument whose
signature does not appear thereon, except as herein otherwise
expressly provided. But one who signs in a trade or assumed
name will be liable to the same extent as if he had signed in his

own name.

A promissory note signed by all the members of a copartnership,
when given for a consideration received by the firm, is as effectual to
create a partnership debt as if signed in the firm name. Meier v.
Bank, 55 Ohio St, 446. (1896.) The recovery of a judgment against
the makers, on such a note, does not extinguish the partnership lia-
bility, nor exclude the creditor from participation in the distribution
of the effects of the firm, in case of its insolvency, among the partner-
ship creditors. Ib. Equity will look behind the form of a judgment,
and inquire into the nature of the demand on which it is founded, and
the relation of the parties, when necessary for the preservation of
equitable rights. Ib.

A promissory note executed by a member of a firm, after its dis-
solution, in consideration of the balance due upon an account with
the firm prior to dissolution, is not, in the absence of express authority
to execute it, such promise in writing as will, under the provisions
of Sec. 4992, Rev. Stat., take the demand on the account out of the
statute of limitations, as against the other members; and this is so,
although the business of the firm was conducted, and the note exe-
cuted, in a state by whose laws the one executing the note has power,
as liquidating partner, to execute a note in settlement of the business
of the firm that will bind the other members. The law is the same as
to payments made by such liquidating partner. Kerper v. Wood, 48
Ohio St. 613. (1891.)

Where one of the defendants for accommodation delivers his note
to a partnership and one of the partners indorses the firm name
thereon and delivers it to plaintiff as collateral security for such part-
ner’s individual debt to plaintiff, in an action thereon against the
maker and the partnership, it is misleading for the court after charg.
FORM AND INTERPRETATION. 29

ing on request of plaintiff that “In order to have acquired title to the
note, plaintiff must establish that such partner had a right to so trans-
fer the note to secure his individual debt,” to add thereto “If he, as a
member of the firm, held that note and transferred it to plaintiff,
then it is good against defendant.” Himelright v. Johnson, 40 Ohio
St. 40. (1883.)

As between a copartnership and a creditor thereof, a note given in
the firm name, without authority, by one partner, after dissolution,
for a debt of the firm, the parties to the note intending to bind, and
believing the note was binding on the firm, will not extinguish the
firm debt. Gardner v. Conn, 34 Ohio St. 187. (1877.) As between
the partners themselves, such transaction will not discharge the non-
consenting partner from liability to make contribution to the partner
paying the debt. Ib.

A member of a firm after dissolution, without authority from his
copartners, renewed firm notes by giving a new note in the firm name.
The new note, without any intent to defraud, was made to bear in-
terest at the rate of ten per cent, and to include the individual note
of one of the partners. The defendant, a member of the firm, sup-
posing the new note was simply a renewal of firm notes at six per cent.
interest, promised to pay it: Held, that the note given in renewal
was binding on the defendant for the amount of the firm notes sur-
rendered on the renewal, with simple interest from that time. Wilson
y. Forder, 20 Obio St. 89. (1870.)

S & P, partners in trade, during the continuance of the partner-
ship, became indebted to a third person for money borrowed, for which
a promissory note was given in the name of the firm. After the dis-
solution of the partnership, and at the maturity of the note, S, in the
name of the firm, executed a new note to the creditor, payable at a
future day, with D as surety, and which D was compelled to pay:
Held, that such liquidating partner has no power to extend the time
for payment of the obligations of the firm, to increase their amount or
to obligate the firm to persons to whom it was not bound at the dis-
solution; and, therefore, that P was not bound by the note given by S
after the dissolution, nor obligated to indemnify D against the con-
sequences of becoming security upon it. Palmer v. Dodge, 4 Ohio St.
21. (1854.)

No such power could be inferred from an authority given by one
partner to the other to settle, liquidate and close up the affairs of the
partnership. Ib.

The dissolution of the partnership worked an absolute revoca-
tion of all implied authority in either of the partners to bind the other
to new engagements, contracts or promises, made to or with persons
having notice of the dissolution, although springing out of, or founded
upon, the indebtedness of the firm. Ib.

The liability of the copartners who do not sign the note is not
affected by the recovery of a judgment against the partner who used

—
30 OHIO NEGUTIABLE INSTRUMENTS.

the firm name and the surety; the other partners were not liable to an
action at law upon the note as a sealed instrument, but were liable in
equity; and if the surety paid that judgment, he might have his action
of assumpsit to recover from the firm the amount thus paid. It was
not in the power of the payee of the note to discharge the firm from
liability by obtaining judgmeut against one of its members; he could
not change the relations between A B and his principals, and deprive
the former of any portion of his indemnity. Purviance v. Sutherland,
2 Ohio St, 478. (1853.)

An acting partner may, for the benefit of his firm, and in order to
raise money, use the name of the firm by accepting a bill of exchange,
to be exchanged for the acceptance of another firm, it being in sub-
stance but the giving the name of the partnership to secure an in-
dorser. Gano v. Samuel, 14 Ohio 592. (1846.)

" One of two partners, without the knowledge and consent of his
copartner, substitutes the partnership for his individual indorsement
on an accommodation note. He is individually accountable to the co-
partner for any consequent loss. Smith v. Loring, 2 Ohio 440.
(1826.) Recognition of and voluntary payment of such indorsement to
the creditor does not change liability between the partners. Ib.

A note signed “Kensell & Co.,” offered against the person alleged
to be the partner, should be accompanied with proof of partnership.
Clark v. Kensell, Wright 481. (1833.)

A general partner in a partnership firm has authority to sign the
firm name to notes and drafts to raise money for partnership purposes,
and when a partner so procures money from a bank, representing that
the money is to be used in the partnership, such notes and drafts are
valid as against the partnership, although the money so obtained never
went to its use. West v. Bank, 1 O. S. C. D. 516 (36 Bull. 264).
(1896.)

In an action on a partnership note signed by W as B C W, where
B is ignorant of the transaction, he is not estopped to deny that there
was such a firm, Baker et al. v. Brennan & Co. 12 C, D, 211 (22 R.
241). (1901.)

Each member of a parinership can bind the firm by receiving,
selling and indorsing negotiable paper payable to the firm in the usual
course of business. Union Nat. Bank v. Wickham, 6 Cire. Dec. 790.
1894.)

A firm of copartners can give the note of the partnership for the
indebtedness of a former partnership for which the members of the
new firm are liable. Greiss v. Wilkop, 5 Cire, Dec, 544 (12 R. 481).
(1893.)

Parties whose names do not appear upon a promissory note cannot
be charged as principals thereon. Burkhardt v. Zimmerman, 1 Dec.
659 (32 Bull. 138). (1887.)

An action against D G, upon a note signed W & D G, cannot be
maintained unless D G authorized the signing or a partnership existed
FORM AND INTERPRETATION. 3L

for which the note was given, of which he was a member. Pease v.
Garst, Ohio Dec. (Dayt.) 289. (1872.)

Where a party borrows money from a bank on a note signed by
him in the name of himself and others, the placing by the bank of the
proceeds of the note to his credit is very strong evidence that the loan
was for his individual use, and that the fact was known to the bank.
Johnson v, Bank, Ohio Dec. (Dayt.) 197. (1872.) .

Where partners sign their individual names to notes for a part-
nership debt, the note is considered as against the firm until shown
that it was intended as an individual note. Magruder v, McCandlis,
3 Re. 269. (1860.)

3171r (4916) [Signature by Agent; Authority; How
Shown.] The signature of any party may be made by a duly
authorized agent. No particular form of appointment is neces-
sary for this purpose, and the authority of the agent may be
established as in other cases of agency.

Where the managing agent of a corporation executes a note in
its name to secure a debt on which it is primarily liable to the cred-
itor, but on which, as between it and a third person signing the note,
it is surety, the company is liable thereon, though no express authority
had been given the agent to so execute the note. Andres v. Morgan,
62 Ohio St. 236. (1900.)

Where bonds, complete in form, and negotiable by delivery, are
placed in the custody of the president of the company, he thereby be-
comes clothed with an apparent authority of disposition. In such
case if the custodian, without the consent or knowledge of the com-
pany, wrongfully and for his own benefit, negotiates them, in due
course of business before due, to one who pays therefor their fair
value, without notice of any restriction on such apparent power of
disposition, the transaction confers upon such purchaser a valid title
to the bonds so purchased, and entitles him to a lien against the
mortgaged property for their payment. Railway v. Lynde et al. 55
Ohio St. 23. (1896.)

F, the owner, on or about August 20, 1857, delivered for collection
to a banking company a draft dated August 14, 1857, payable in thirty
days after date. On August 24, 1857, the banking company failed, and
on that day credited F with the amount of the draft. On September
26, 1857, the banking company made an assignment of all its property,
in trust for the benefit of its creditors. On the day of its failure, one
of its creditors attached the draft, and other property in the possession
of the banking company. At maturity the draft was paid, and the pro-
ceeds were accounted for by the sheriff to the attaching creditor. Sev-
eral months after the assignment, the trustee under the assignment
had an adjustment with the attaching creditor, of his claim against the
banking company, whereby the company was credited on its indebt-
edness to the attaching creditor, with the proceeds of the draft, and
32 OHIO NEGOTIABLE INSTRUMENTS.

the attachment of the draft and other property was released. In an
action in the superior court of Cincinnati by the trustee against F for
money alleged to be due on account, F set up, by the way of cross
petition, an indebtedness of the trust estate to him on the draft and
recovered judgment for the amount claimed. By the terms of the judg-
ment, it was “considered by the court, that the defendant recover of
the plaintiff, as trustee, the sum of $——,” being the full amount, with
interest, of the draft. An execution was issued on the judgment, and
levied on the individual property of the trustee. On motion the court
quashed the execution. An action was brought in the court of com-
mon pleas against the trustee, to recover the full amount of the judg-
ment, out of the money and other assets in his hands as trustee: Held,
(1) The court of common pleas had jurisdiction of the subject matter
of the action. (2) The banking company, could not, by crediting,
on the day of its failure, the owner with the amount of the draft be-
fore its maturity and collection, place him in the position of a general
creditor of the company, entitled to receive only dividends out of its
assets in the hands of the trustee. (3) The relation between the
owner of the draft and the banking company with which it was lodged
for collection, was that of principal and agent; and a trust character
was impressed upon the draft and its proceeds, which forbade their
application, with the company’s or trustee’s acquiescence, as a credit
in payment of a debt of the company. Jones v, Kilbreth, 49 Ohio St.
401. (1892.)

The principle of agency, by which a principal may ratify the un-
authorized act of his agent, does not apply to the alleged ratification
of a forged note; the act of the agent being voidable, may be rati-
fied; the act of the forger is void, and cannot be ratified. Workman
v. Wright, 33 Ohio St. 405. (1879.)

A creditor demands security of his debtor, who, to obtain it,
makes fraudulent representations to the one who becomes surety. The
creditor is ignorant of these representations, and innocent as regards
the debtor’s conduct. No such relation of agency exists as will make
the creditor responsible for the debtor’s acts. Kingsland v. Pryor,
33 Ohio St. 19. (1877.)

Where a party receives a note as collateral security for an existing
debt, without any special agreement, he is bound to use ordinary care
and diligence in collecting it, and is responsible for any loss which
may happen to the other party by reason of a want of such care and
diligence. The rights and liabilities of the parties in such cases are
governed by the general law of agency, and not by the strict rules of
commercial law, applicable to negotiable paper. And where there is a
special agreement between the parties, its terms will control the
general rule. Roberts v. Thompson, 14 Ohio St. 1. (1862.)

In a letter addressed to John H. Dorland and family by the plain-
tiff in error, was the following paragraph: “Now, John, if you can
get that draft (one of $1,000) of Hugh Mulhollan, till the first day of
September, I will be responsible for the money, and Fry will come that
FORM AND INTERPRETATION. 33

way and pay them in gold. If they will let you have it, they may de-
pend upon it for sure:” Held, (1) That upon the purchase of the
draft, on the strength of the letter, by John, he leaving the letter as
security for the payment, the writer of the letter, on reasonable notice,
was liable for the value of the draft. (2) That the letter might be
regarded either as an authority to John to purchase, as agent of the
writer, or as a direct undertaking to pay the price of the draft to Mul-
hollan, the owner, according to the terms of the letter. Dorland v.
Mulhbollan, 10 Ohio St. 192. (1859.)

In this case, C was the authorized agent of F, to fll v up ‘the paper
and procure a discount, having no title to or interest in the paper; and
although not authorized to affix seals to the signatures, and, therefore,
incompetent to bind F thereby, his attempt to do so cannot affect S,
the payee. Having fully executed and not exceeded his authority, by
procuring the discount of the paper as a promissory note, his unau-
thorized act in affixing a seal may be treated as a nullity, and the
instrument enforced in the manner and to the extent contemplated by
the surety, as such promissory note. Fullerton v, Sturges, 4 Ohio St.
530. (1855.)

It is contrary to public policy to permit officers of the state to
transact the business of the state and to contract in their own name.
All contracts for money due the state should be made in the name of
the state, and all suits brought in the name of the state. Hunter v.
Field, 20 Ohio 340. (1851.) No authority is given to such officer to
take a note, and it creates no legal liability in his favor, being with-
out consideration. Ib.

The agent may execute a note jointly with others who have a com-
mon interest in the same subject matter, to pay the necessary expenses
for the accomplishment of a common end. Layet v, Gano, 17 Ohio
466. (1848.)

A power of attorney conferring authority to act in a particular
transaction authorizes the agent to execute a note in the name of the
principal if necessary for the performance of the agency. Ib.

Where a note or receipt is signed by an agent, it must be shown
that the agent had authority to act and that he signed the paper, be-
fore it can be read in evidence. Martin v. Butler, Wright, 553.
(1834.)

Where an agent with limited powers, but having exclusive charge
of a branch office, had for a year or more indorsed and discounted notes

- for his principal, and the principal had acquiesced therein, such agent
is thereby authorized to indorse his principal’s name for accommoda-
tion upon the note of another and his principal will be bound thereby
to one taking such note without notice. Holmes v. Hayes, 1 O. S.
Cc. D. 206 (82 Bull. 346). (1894.)

Giving real estate and chattel mortgages to secure to one corpora-
tion moneys advanced to another and to secure notes indorsed by an
officer of such corporation, does not amount to a ratification of the

3
34 OHIO NEGOTIABLE INSTRUMENTS.

indorsement of a different note, unless such different note was in-
cluded in the indebtedness secured by said mortgages, and would not
then amount to such ratification if the indorser did not know of such
indorsement at the time such mortgages were received. Ib,

The fact that the agent of a corporation for a long period of time,
and with the knowledge of the general manager and treasurer, in-
dorsed negotiable paper and discounted the same for such corporation,
does not of itself amount to the granting of power to indorse and nego-
tiate notes, but is only evidence tending to show a granting of such
power, and unless, at the time of indorsing, such agent had authority
to so indorse and discount, his principal is not liable unless he clothed
his agent with such apparent authority that indorsee relied upon it to
his prejudice. Ib.

The rule of ultra vires does not apply to contracts of a corpora-
tion which are apparently within its corporate powers, but which are
rendered ultra vires by extraneous facts or secret purposes of the cor-
poration, or of the agent acting in reference thereto, provided the other
party to such contract acts in good faith, and as a prudent man should;
and this is particularly so as to negotiable instruments. Ib,

Where a promissory note is deposited with a bank as the agent of
another bank for a certain purpose, it confers no authority on the
principal to use or hold it for another purpose, and if the purpose for
which the note was deposited is not consummated, the principal ob-
tains no title or claim to the notes. Quebec Bank v. Helman, 5 O. F.
D. 235. (1884.)

A corporation is chargeable with knowledge obtained by its treas-
urer who has charge of its financial affairs, and of its discounts, ob-
tained while acting as agent for and in behalf of such corporation, as
to indorsements of promissory notes by agents of such corporation for
the accommodation of another corporation. Holmes y. Hayes, 1 O. S.
C. D, 206 (32 Bull. 346). (1894.) :

If an officer has authority to execute notes for the corporation, but
exceeds his authority in so doing, the note will be good against the cor-
poration in the hands of a bona fide holder for value. Dexter Savings
Bank v. Friend, 12 0. F. D. 208. (1898.)

The president of a corporation is presumed to be authorized to
bind the corporation by his acts in its name, and notes so executed by
him are presumptively valid against the corporation, in the absence
of a statute or by-law limiting his authority. Ib.

One appointed to negotiate a note has authority to receive a certifi-
cate of deposit by a bank instead of money, and the makers of the
note are liable. Poorman v. Woodward, 3 O, F. D, 449. (1858.)

A partner cannot, unless expressly authorized, sign the firm name
to a note as an accommodation indorser. Union Nat. Bank v. Wick-
ham, 6 Circ. Dec. 790. (1894.)

Where a party signs a note in his own name and without author-
ity also signs the names of other persons thereto, but has authority to
FORM AND INTERPRETATION. 35

act in the management of the joint property of himself and the others,
and in the raising of money and payment of their joint debts, etc., and
did so act, and signed the names to the notes for that business; and
the others afterwards, upon seeing the notes in possession of a bank
from whom the signer had borrowed money on said note, without dis-
closing the signer’s want of authority or making any objection to the
notes, promised to pay the same, they are liable. Johnson v. Bank,
Ohio Dec. (Dayt.) 197. (1872.)

8171s (4917) [Liability of Persons Signing as Agent, etc.]
Where the instrument contains or a person adds to his signature
words indicating that he signs for or on behalf of a principal,
or in a representative capacity, he is not liable on the instrument
if he was duly authorized; but the mere addition of words de-
scribing him as an agent, or as filling a representative character
without disclosing his principal does not exempt him from per-

sonal liability.

A promissory note which reads: “Thirty days after date we
promise to pay,” etc., and signed, “The Akron White Sand & Stone
Co., L. K. Mihills, Secy. & Treas., D, B.” Aungst, Pres.,” is, on its face,
the note of the company alone, and is not the note of L. K. Mihills
and D. B. Aungst, and the latter are not personally bound thereon.
Aungst v. Creque, 72 Ohio St. 551. (1905.)

A defendant having interposed a cross-petition praying for the
reformation of a written instrument on which the plaintiff’s action is
founded, the finding and judgment of the court thereon while it re-
mains in force is, in the further progress of the case, conclusive as to
the allegations of mistake. Reiff v. Mullholland et al. 65 Ohio St. 178.
(1902.)

The drawee of a bill of exchange, drawn by the “Kanawha & Ohio
Coal Co.,” was described in the bill as “John A, Robinson, Agt.,” and
it was accepted by him as “John A. Robinson, Agent K. & O. C. Co.:”
Held, that the acceptance so made was the personal obligation of John
A. Robinson, and that in a suit upon the acceptance by an indorsee
against him, parol evidence was not admissible, in the absence of
fraud, accident or mistake, to show that the defendant so accepted the
pill intending to bind the drawer as his principal, and that this fact
was known to the plaintiff at the time it became the owner and holder
of it. Robinson v. Bank, 44 Ohio St. 441. (1886.)

Neither an executrix nor an administrator have power to bind an
estate by negotiable notes to secure a debt created by them, notwith-
standing the transaction results in benefit to the estate. Boggs v.
Wann, 7 O. F. D. 439. (1893.) Curtis v. Bank, 39 Ohio St..579. (1883.)

The character of the liability of the drawer of a bill of exchange
must be determined from the instrument itself; and the addition of
36 OHIO NEGOTIABLE INSIRUMENTS.

the word “agent” to his name, without anything else on the instrument
indicating his principal, does not relieve him from personal liability
as drawer of the bill. Bank v. Cook, 38 Ohio St. 442. (1882.)

Where an agent, acting within the scope of his employment, exe-
cutes to a person having knowledge of such agency and employment,
a note in the form “I promise to pay,” etc., signing his own name
thereto, with the word “agent” added, but without in any way desig-
nating or naming his principal, the agent is individually liable as the
maker of the note, at the suit of the payee. Collins v. Buckeye State
Ins. Co. 17 Ohio St. 215. (1867.) Parol evidence is inadmissible, in
such a case to show that it was not the intention of the agent to make
himself so liable. Ib.

Where an agent drew a post-dated negotiable check on a bank, and
signed it with his own: name, adding thereto the word “agent,” but
without indicating thereon the name of his principal, and the party to
whom such check was delivered negotiated it to-a third person, for a
valuable consideration, before the day of its date: Held, that the
principal is not bound by the check, and the holder cannot maintain
an action thereon against him. Anderton v, Shoup, 17 Ohio St. 125.
(1866.)

Where no fraud or mistake in the execution of an instrument is
averred by the makers, they will not be permitted to set up.an inten-
tion on their part not to bind themselves individually, but only in
their representative capacity as directors, when such intention is
different from the legal import of the writing itself, on its face.
Titus et al. v. Kyle, 10 Ohio St. 445. (1859).

One who indorses a draft, drawn by a corporation, as agent, or
treasurer (no distinction exists between the two terms or between
“Treasurer” and “Treas.”) without naming his principal or the com-
pany for whom he acts, binds himself individually and cannot show,
in a suit upon the draft, the relation existing between himself and his
principal or himself and the company, or obtain a reformation of the
instrument to show such relation. Eells v. Shea, 11 Circ. Dec. 304
(20 R. 527). (1900.)

Where it appears that the officer of a corporation, who accepted a
draft as “Treas.,” had funds of the company in his possession which
the should have used to pay the drafts, and that he failed to do so, and
the company then became insolvent, the court held that a delay of
two years in bringing suit against such officer individually, after settle-
ment of the suit against the company, created no estoppel on the
‘ground of laches. Ib.

Where a person draws a note or bill signing his own name with the
word “agent” added, he is personally liable, although the payee knows
that he was acting as agent. Barnhisel v. Bank, 7 Circ. Dec. 533 (17
R. 124). (1897.)

In an action on a note a personal liability cannot be asserted
against defendants who have signed as “president” and “clerk,” where
FORM AND INTERPRETATION. 37

upon the face of the note they have indicated an intention to charge a
township board of education. Second Nat. Bank v. Wilcox, 1 Cire.
Dec. 511 (2 R. 325). (1887.)

An action against D G upon a promissory note signed “W & D G”
cannot be maintained unless D G authorized the signing of the note in
that way, or that a partnership existed for the purpose for which the
note was given, of which he was a member. S. Mont, Pease v. Garst,
Ohio Dec. (Dayt.) 289. (1872.)

iy pA =

3171t (4918) [Signature by J Deane Effect of.] A
signature by ‘‘procuration’’ upatntes as noted that the agent
has but a limited authority to sign, and the principal is bound
only in case the agent in so signing acted within the actual limits
of his authority.

3171u (4919) [Effect of Indorsement by Infant or Corpo-
ration.] The indorsement or assignment of the instrument by
a corporation or by an infant passes the property therein, not-
withstanding that from want of capacity the corporation or in-
fant may incur no liability thereon.

Unless expressly restrained by its charter, a corporation has the
incidental power to make any contract and evidence it by any instru-
ment that may be necessary and proper to accomplish such purposes
and objects. Straus v. Eagle Ins. Co. 5 Ohio St. 59. (1855.)

A note or bill made or received by such a corporation, is prima
facie within its corporate powers, and therefore valid; but it is com-
petent to show that it was given or taken for a purpose not authorized;
and when shown, the contract is void, and the instrument a. nullity. Ib.

A manufacturing corporation has power to indorse the notes of an-
other corporation. Holmes v. Hayes, 1 O. 8S. C. D, 206 (32 Bull. 346).
1894.)

Where a note made by one corporation is, by its terms, ‘payable to
another corporation, and an agent of the latter indorses, as agent, the
name of the payee thereon, gives the note to the president of the first
corporation to have him effect a discount of it, such note is not, while
in the hands of such president, in the hands of the maker. Ib.

A note indorsed by a corporation and evidencing a loan from a
bank, the proceeds of which went to an individual with the bank’s
knowledge, is wholly ultra vires as to the corporation. Benedict v.
Market National Bank, 6 Dec. 320 (4 N. P. 231). (1897.)

A person having dealt with a corporation, not for profit, by giv-
ing it his note, is estopped from denying its corporate existence. Dur-
rell v, Belding, 4 Circ. Dec. 263 (9 R, 74). (1894.)

3171v (4920) [Forged Signature; Effect of.] Where a
signature is forged or made without authority of the person
38 OHIO NEGOTIABLE INSTRUMENTS.

whose signature it purports to be, it is wholly inoperative, and
no right to retain the instrument, or to give a discharge there-
for, or to enforce payment thereof against any party thereto,
can be acquired through or under such signature, unless the
party against whom it is sought to enforce such right is pre-
eluded from setting up the forgery or want of authority.

FORGED INSTRUMENTS,

One who indorses and delivers a negotiable promissory note in
the usual course of business, thereby undertakes that the signatures
of all prior indorsers are genuine. First National Bank of Mt. Vernon
v. First National Bank of Lincoln, Ill. 68 Ohio St. 48. (1903.)

In an action brought upon that undertaking by an indorsee to
recover the amount which he has been adjudged to pay in consequence
of the forgery of the signature of a prior indorser, the plaintiff having
given to the defendant timely notice of the pendency of the suit in
which such judgment was recovered and an opportunity to defend, such
former judgment is conclusive with respect to the forgery. Ib.

The general rule that the drawee of a check, draft, or bill of ex-
change, is held to know the signature of the drawer, and makes pay-
ment at his own peril, has not been modified in this state, except by
local custom as held in Ellis & Morton v. Ohio Life Insurance & Trust
Co. 4 Ohio St. 628. Bank v. Bank, 58 Ohio St. 207. (1898.)

.An indorsement of a check, draft, or bill of exchange, “for col-
lection,” by one other than the payee, does not guarantee that the name
of the drawer is genuine. Ib.

Such indorsement is a guarantee that the names of the indorsers,
then on the paper, are genuine. Ib.

Presentation for payment of a check by a bank which is the in-
dorsee “for collection,” does not justify the drawee bank in relaxing
any of its vigilance in determining whether or not the name of the
drawer is genuine. Ib.

The bank of Belmont purchased a check drawn on the bank of
Barnesville, from the payee thereof, who was known to the cashier,
and at his request the cashier wrote the payee’s name on the back
of the check as a blank indorsement. The cashier theh indorsed the
check “for collection,” and forwarded it to its correspondent, which
also indorsed it “for collection,” and presented it to the drawee bank,
which paid it, and charged it to the account of the drawer as ad-
ministrator, as he had no individual account with the bank. About
three months thereafter the check was found to be a forgery, and
the drawee bank caused it to be duly protested, and gave notice to
the Belmont bank, and demanded repayment of the money: Held,
that the drawee bank was bound to know the signature of its de-
FORM AND INTERPRETATION. 39

_positor, and was negligent in charging the check to his account as
administrator, and that it had no right to recover the money. Ib.

M executed to eight persons a mortgage to secure eight promissory
notes, made to them respectively. The notes were delivered to the
several mortgagees, and the mortgage to McG, one of the mortgagees.
It. was then duly recorded. After record, without objection by the
others, McG took possession of the mortgage and of three of the notes
belonging to other mortgagees, for safe keeping. Afterward, and be-
fore maturity of any of the notes, McG, claiming to be the owner of the
mortgage, and of all the notes, for a valuable consideration, received
of K, assigned and delivered to him the mortgage and forged copies of
all the notes, with forged indorsements on each, except that on the
note purporting to be made to him the indorsement was genuine. The
assignment purported also, to transfer the notes secured by the mort-
gage. McG retained in his own possession the genuine notes. After-
ward, but before maturity of the note made to McG, he, for a valuable
consideration, indorsed and delivered the genuine note to M and M,
informing them that the note, with others, was secured by mortgage
on certain real estate. Before taking the note, M and M had the rec-
ords examined and found that the statements of McG respecting the
mortgage security were correct. He also stated that he, with the con-
sent of the other mortgagees, was holding the original mortgage for

‘himself, and as custodian for the others. They did not ask to see the
original mortgage, and did not see it. K and M and M acted in entire
good faith, neither having suspicion that a fraud was contemplated by
McG: Held, on foreclosure of the mortgage, the debt to M and M is
entitled to preference over that of K. Kernohan v. Manss, 53 Ohio St.
118. (1895.)

The rule that a negotiable instrument made payable to a fictitious
person or order, is, in effect, an instrument payable to bearer, applies
only where it is so made with the knowledge of the party making it,
and does not apply where the maker, supposing the payee to be a real
person and intending payment to be made to such person or his order,
is induced by the fraud of another to so draw it. Armstrong v, Bank,
46 Ohio St, 512. (1889.)

Where, by the fraud of a third person, a depositor of a bank is in-
duced to draw his check payable to a nonexisting person, or order, the
drawer being in ignorance of the fact and intending no fraud, the bank
on which the check is so drawn is not authorized to pay it and charge
the amount to the account of its customer, on the indorsement of the
party presenting it, although it appears to have been previously in-
dorsed by the party named as payee. Such indorsement is, in effect, a
forgery, and the payment thereon by the bank confers no right on it
as against the drawer of the check. Ib. In the absence of a course
of dealing or understanding to the contrary petweén the parties, the
duty of a banker is, in all cases, to pay to the person named, or his
order, where the terms of the check are such; and he may, and should
40 OHIO NEGOTIABLE INSTRUMENTS.

withhold payment until fully satisfied as to the genuineness of the
indorsement. Ib.

A mere promise by the supposed maker to pay a forged note, with-
out any new consideration, and without circumstances creating an es-
toppel against the promisor, does not become a binding contract creat-
ing a liability to pay such note. Workman v. Wright, 33 Ohio St.
405. (1878.)

The duty of a banker is to pay the checks and bills of his customer
drawn payable to order, to the person who becomes holder by a genuine
indorsement; and he cannot charge him with payments made other-
wise, unless the circumstances amount to a direction from the cus-
tomer to the banker to pay the paper without reference to the genu-
ineness of the indorsement, or are equivalent to a subsequent admis-
sion that the indorsement is genuine, in reliance on which the banker
is induced to alter his position. Dodge v. The National Exchange
Bank of Columbus, O. 20 Ohio St, 234. (1870.)

The drawer of a check payable to the order of the plaintiff, de-
livered it to a third person in exchange for property of the plaintiff,
such third person claiming to be the plaintiff, and saying that he
could identify himself at the bank. In ignorance of the circum-
stances under which the check was given, the bank paid the check to
the bearer without inquiry, on the forged indorsement of the plain-
tiffs name: Held, (1) That the plaintiff could ratify the act of the
drawer in giving a check, and by such ratification the check became
his property, for the amount of which he could maintain an action
against the bank. (2) The fact that the drawer, with notice of the
plaintiff’s clafm against the bank, subsequently lifted the check and
was charged with its amount in his settlement with the bank, did not
affect the rights of the plaintiff. Ib.

A forged instrument of writing was in the following terms:
“Wen. 19th. Mr. Davis—pleas let the boy have $6,00 dolers for me.
B. W. Earl:” Held, that such instrument is prima facie, an “order
for the payment of money,” within the meaning of the statute. Evans
v. State, 8 Ohio St. 196. (1857.)

In a case of money paid upon a forgery, not falling within the ex-
ception and governed by the general rule, it is sufficient to give
notice when the forgery is discovered. Ellis v. Ohio Life Ins, Co. 4
Ohio St. 628. (1855.)

A surety in signing his name to a promissory note below or after
the names of other persons have been placed on the note as cosureties,
although he does not thereby warrant, does, in effect, affirm the genuine-
ness of the previous signatures, and cannot avoid his liability to the
payee by showing that they had been forged to the note by the prin-
cipal, but of which the creditor had no notice. Selser v, Brock, 3
Ohio St. 302. (1854.)

An indorsement of a promissory note is the subject of forgery
under the crimes act. Poage v. State of Ohio, 3 Ohio St. 229. (1854.)
CONSIDERATION 41

To constitute forgery, the instrument must be such, when forged,
that it does, or may tend to, prejudice the rights of another. Barnum
v. State, 15 Ohio 717. (1846.)

The fraudulent alteration of a settlement of a book account, with
the intent to defraud A by including thus falsely within the terms of
settlement a claim of A against B, which accrued after the settlement
was in fact made, is forgery. Ib. That such claim existed may be
proved, though there be no book of original entries, or no book ac-
count in which the items of such claim were charged. Ib.

Opinions of handwriting may be given by those skilled in writing,
and experience to form more accurate opinions; but a cashier of a.
bank is entitled to no more credit in judging of handwriting than an-
other person of equal skill. Murphy v. Hagerman, Wright 294. (1833.)

Where one partner having given a firm note and forged the name
of the payee to procure its discount ‘at a bank, no suit can be main-
tained by the bank under the assignment. York Bank vy. Asbury,:3 O.
F. D. 505. (1858.)

If, at the time of making a promise to pay a note to which prom-
isors’ names were signed without authority by a person acting in*the
management of joint property, they were ignorant of the fact that the
money had been borrowed from the bank upon the credit of the parties
to said note, and placed by the bank to the credit of the signer, and
also ignorant that the money had not been used for their benefit, they
are not liable if they afterwards discovered that the money was bor-
rowed by the signer for his own use. Johnson v, Bank, Ohio Dec.
(Dayt.) 197. 1872.)

EVIDENCE—-WITNESSES.

Standards of comparison, to be used by experts upon the trial of
an issue as to the genuineness of a signature, when not a paper already
in the case or admitted to be genuine, are not admissible for that pur-
pose, unless they are clearly proved by witnesses who testify directly
to their having been written by the party whose signature is in ques-
tion. Pavey v. Pavey, 30 Ohio St. 600. (1876.)

Evidence which tends to prove that the forged instrument could
not, under any state of circumstances, prejudice the rights of any one,
is competent to go to the jury. Barnum v. State, 15 Ohio 717. (1846.)

An indorser of a bill of exchange, whose interest is equally bal-
anced, is a competent witness to prove a prior indorsement, claimed to
have been forged. Ellis v, Bervellier, 15 Ohio 489. (1846.)

Re-Subdivision 2.
CONSIDERATION.

‘8171w (4921) [Presumption of Consideration.] Every
negotiable instrument is deemed prima facie to have been issued
42 OHIO NEGOTIABLE INSTRUMENTS.

for a valuable consideration; and every person whose signature
appears thereon to have become a party thereto for value.

The law presumes the existence of a consideration for a promis-
sory note; and this presumption continues until it is shown that there
was none; and the burden of showing this is on the party attacking
the note for want of consideration. Dalrymple v. Wyker, 60 Ohio St.
108. (1899.)

Where the issue is as to whether there was a consideration for a
promissory note, and the evidence offered simply shows that there was
no benefit to the promisor, and does not exclude the possibility that
there was detriment or loss to the promisee, it is insufficient to sup-
port the issue. Ib.

. An answer to a suit on a promissory note, averring that there was
no consideration for it, moving to the promisor, is not sufficient as a
defense, as it does not preclude the possible fact that there was detri-
ment or loss to the promisee, which constitutes a consideration for a
promise as well as a benefit to the promisor. Ib.

Under the liberal construction of pleadings prescribed by the code
of civil procedure, and no motion being made to compel the pleading to
be made more definite and certain, an averment in the petition that the
guarantor is liable both as an indorser and a guarantor, implies a
transfer of the note by the guarantor to the guarantee, and imports a
consideration for the contract of guaranty. Clay v. Edgerton, 19 Ohio
St. 549. (1869.)

In a suit brought by the holder of a promissory note against his
indorser, it is not necessary that the petition should, in terms, state
that the note was transferred, for a valuable consideration. This is
presumed from the indorsement and delivery, and the want of consid-
eration is a matter of defense, to be set up by answer. Dumont v.
Williamson, 18 Ohio St. 515. (1869).

On the face of a sealed note, executed by one partner in the part-
nership name, and signed by A B, as surety, the presumption in the
absence of all contrary proof is that it was given for a consideration
received or to be received by the firm and was intended and under.
stood to bind it, the seal being added in mere ignorance of its effect;
and that A B was the surety not only of the partner who signed the
note, but of the firm. Purviance v. Sutherland, 2 Ohio St. 478. (1853.)

The consideration of a promise to pay the debt of a third person
need not be in writing. Reed v, Evans, 17 Ohio 128. (1848.)

Quaere: Is the plaintiff in assumpsit by him, as indorsee against
the maker of a note, upon the plea of non assumpsit, without affidavit,
under the law of Ohio, bound to prove the indorsement of the note?
Bush v. Ellsworth, 6 Ohio 168. (1883.)

Declaration upon a note in writing need not allege consideration.
Richmond v. Patterson, 3 Ohio 369. (1828.)
CONSIDERATION. 43

Action can be sustained upon a note in writing, whether negotiable
or not, without setting out the consideration or original contract.
Dugan v. Campbell, 1 Ohio 115. (1823.)

A prima facie case in favor of plaintiff is made out by his offering
in-evidence a negotiable promissory note, and the burden of proof
is then cast upon the defendant; and where the latter offered no evi-
dence, the plaintiff is entitled to a verdict and judgment in his favor.
Bode v. Werner, 16 Circ, Dec. 206. (1902.)

Every presumption of law favors the validity of promissory notes
given in settlement of subscriptions in aid of college endowments, and
the onus is on the one impeaching the validity thereof. Sturges v.
Colby, 4 0. F. D. 502. (1878.)

Where a note is indorsed in blank, the presumption is that it was
indorsed for a sufficient consideration, in the usual course of trade, for
a valuable consideration and in good faith. Wilhelm v. Snowden,
Ohio Dec.( Dayt.) 435. (1869.)

3171z (4922) [Consideration; What Constitutes.] Value
is any consideration sufficient to support a simple contract. An
antecedent or pre-existing debt constitutes value; and is deemed
such whether the instrument is payable on demand or at a future
time.

A promissory note is not without consideration as to one who exe-
cutes it as surety, although the consideration as between the principal
and the payee is the doing of an act by the latter which a previous
contract had bound him to do, if the surety was not a party to such
previous contract and its performance was waived by the principal
while it was yet executory. Merchants’ National Bank of Cincinnati
yv. Ryan et al. 67 Ohio St, 448. (1903.)

Where the issue is as to whether there was a consideration for a
promissory note, and the evidence offered simply shows that there was
no benefit to the promisor, and does not exclude the possibility that
there was detriment or loss to the promisee, it is insufficient to sup-
port the issue. Dalrymple v. Wyker, 60 Ohio St. 108. (1899.)

The consideration for a promissory note executed to an incor-
porated college is the accomplishment of the purposes for which it is
incorporated and in whose aid the note is executed; and such consid-
eration is sufficient. Irwin v. Lombard University, 56 Ohio St. 9.
(1897.)

The endorsement of the maker’s name on the back of a promissory
note payable to his order, and its delivery in that form to another for
value, are essential parts of the execution of the note, which then be-
comes, in legal effect, payable to the holder or bearer; but the maker
does not thereby become an indorser in the legal sense of the term,
nor contract ary liability but that of a maker. Ewan v. Brooks-Water-
field Co. 55 Ohio St. 596. (1897.)
44 OHIO NEGOTIABLE INSTRUMENTS.

The plaintiff was the owner and holder of a promissory note for
$269.52, signed by J, dated January 18, 1873, payable to the plaintiff or
order, in six months after date, for value received, with interest. On
the fifth day of October, 1882 (J then being dead), the plaintiff sur-
rendered the note to H, the father of J, who, in consideration of such
surrender, by a written obligation bearing date of that day, agreed that
the plaintiff should be paid from his personal estate, at his decease,
the amount of the note, and the sum to be paid was, by the terms of
the obligation, made a charge and advancement to the heirs of J. By
reason of the insolvency of the estate of J, the note at the time it was
surrendered to H was deemed uncollectible: Held, that the surrender
of the note was a sufficient consideration for the execution and delivery
of the written obligation. Judy v. Louderman, 48 Ohio St, 562. (1891.)

The creation of a fund with which to pay an indebtedness of an
educational institution is not a consideration in law for a written
promise given by the maker to the institution with a view to contribute
to that object. Johnson v. Otterbein University, 41 Ohio St, 527. (1885.)
Where such promise contains a stipulation that the amount is to be ap-
plied exclusively to the payment of such indebtedness, and is accepted
by the institution: Held, that the acceptance does not give rise to a
ease of mutual promises in the sense requisite to constitute a con-
sideration in law. Ib.

In order to render the writer of a letter of credit liable, either
upon an implied acceptance or an agreement to accept drafts taken
on the faith of such letter, the drafts must be taken for a valuable
consideration. Sherwin v. Brigham, 39 Ohio St. 137. (1883.)

A promise to have the drafts discounted, and to take up notes on
which the persons taking the drafts are liable as indorsers, is not a
valuable consideration. Ib.

A patented invention which is capable of being applied to some
practical or beneficial use, and is not frivolous, or injurious to the
well-being of society, is valid, without regard to the degree of its
utility, and an interest therein constitutes a sufficient consideration for
a promissory note, or other contract. Tod v, Wick Bros. 36 Ohio St.
370. (1881.)

A debtor assigned all his personal property for the benefit of cred-
itors, and also executed to the assignee a mortgage upon real estate for
their benefit; the debtor subsequently sold part of the mortgaged prop-
erty to a third person, who agreed to pay a part of the purchase-money
by assuming and paying to the assignee a specified sum, which the as-
signee had agreed to take for a release of the mortgage lien upon the
part sold; the assignee accordingly released the mortgage lien upon
the record, and took the purchaser’s note for the specified amount:
Held, that the real consideration of the note was the release of the
mortgage lien, and the fact that the debtor had failed and refused to
execute his contract of sale, was no good defense to an action upon the
CONSIDERATION. 45

‘note by the assignee against the purchaser. Keen v. Hall, 31 Ohio St.
107. (1876.)

An agreement by a creditor to stay legal proceedings against his
debtor is a sufficient consideration to support a written promise by a
third person to pay the debt, and in order to make the promise binding,
it is not necessary that the creditor should discharge the debtor, or re-
linquish his securities and liens. Brownell v. Harsh, 29 Ohio St. 631.
(1876.) :

An agreement to forbear suit on a pre-existing debt, is a sufficient
consideration for a note given therefor; and an agreement so to for-
bear, until the maturity of the note, will be presumed, in the absence
of proof to the contrary. Holzworth v, Koch, 26 Ohio St, 33. (1875.)

Four persons being jointly indebted to one bank in two several
sums, and to another bank in one sum, by mutual agreement between
all parties, the notes which the banks respectively held for the debts
-were given up, and the debtors each executed his individual note and
mortgage for such part of the aggregate sum as it was agreed among
the debtors he should secure and pay; and in pursuance of said agree-
ment the new notes and mortgages were drawn and made payable to a
third person, and by him indorsed to one of the two banks. In an ac-
tion against one of the debtors, upon his note and mortgage,.by the
bank to which it had been assigned: Held, that the transaction was a
payment, and not a mere renewal of the old notes; and there was a
sufficient consideration to support the new notes and mortgages; and
that the bank had authority, by the provision of the national currency
act, to make the arrangement and take the new notes and mortgages in
that form and manner. Shinkle v. Bank, 22 Ohio St. 517. (1872.)

To entitle a holder of negotiable paper to the benefit of the rule
which protects such a holder from the equities of third persons, it is
not necessary that he should have paid the face of the paper. Baily
vy. Smith, 14 Ohio St. 396. (1863.)

The defendants’ intestate executed the following paper: “For value
received, I promise to pay to Mrs, Hamor, wife of John Hamor, the sum
of $300, as a small recompense for the kindness shown to me by her.
The executors of my last will and testament are hereby directed to pay
the above to Mrs. H, or her sons, Moses and John, after my decease.
John R. Moore. Attest: Philip Riggs. February 28, 1850.” And de-
livered the same to the subscribing witness, with injunctions to deliver
it to Mrs. Hamor after his death; which was done: Held, (1) That
this was not a gift inter vivos, nor a gift causa mortis, nor was it good
as a testamentary disposition. (2) That the “kindness” mentioned in
the paper, being acts of friendship and hospitality merely, done and ac-
cepted at the time as gratuitous, does not in law constitute a good con-
sideration to support the express promise. Hamor v. Moore’s Admrs.
8 Ohio St. 2389. (1858.)

If a person, upon a sufficient consideration, make a promise to
another, for the benefit of a third person, such third person may main-
46 OHIO NEGOTIABLE INSTRUMENTS.

tain an action at law upon the promise. Thompson v, Thompson, 4
Ohio St. 333. (1854.)

A pre-existing debt is a good consideration for the transfer of a
negotiable note, and a bona fide indorsee, without notice, takes the
note discharged of prior equities. Carlisle v. Wishart, 11 Ohio 173.
(1842.)

A useless patent right is not a good consideration for a promise.
Fallis v. Griffith, Wright 304. (1833.)

The deposit of a certified check by a railway company with a
municipal corporation as a guaranty of its good faith and as a condi-
tion required by the municipality to secure a bid made by it for the
construction of a street railway through the streets, is not without
consideration, in that the municipality gave nothing to the railway com-
pany and the company agreed to carry passengers within the munici-
pality free of charge, when it appears that the company desiring a
franchise through the municipality, in order to complete its road from
terminus to terminus, applied for a franchise and in consequence there-
of the municipality advertised for bids to construct a street railroad
through it, agreeing to grant a franchise to the lowest bidder, that the
company submitted its bid, which being the lowest was accepted and
the franchise granted, whereby it was given eleven months within
which to build its road, which franchise was accepted by the company.
Hattersly v. Waterville (Vil.) et al. 16 Circ. Dec. 226. (1904.)

As detriment or loss to the promisee of a negotiable promissory
note is a sufficient consideration to support the promise of the maker.
“Want of consideration moving to the promisor is, alone, insufficient
as a defense to an action on the note, as the possible fact of detriment
or loss to the promisee is not thereby precluded. Bode v. Werner, 16
Cire. Dec, 206. (1902.)

A defense to an action between the original parties on a promis-
sory note alleging the consideration therefor to be advancements, made
from a father to his daughter, its execution and delivery as a mere
receipt or memorandum thereof, and the mutual understanding of the
parties to such effect, is not irrelevant or immaterial as it shows want
of consideration or a fraud, although the answer does not expressly
so charge. Martin v. Scudder, 14 Dec, 288. (1903.)

Advancements from a father to his daughter are gifts inter vivos,
and when actually made and delivered cannot be recovered by the
donor or his representatives; and a note given therefor to the donor
\by the husband of the donee is without consideration, cannot be en-
forced, and will be treated merely as a receipt or memorandum of the
amount received by the donee if the parties so intend. Ib.

Parol evidence is admissible in behalf of the maker of a note, in
an action thereon by the payee, to show that the consideration there-
for was advancements by the payee to the wife of the maker, who
is a daughter of such payee; that the same was executed and delivered
by the maker to, and received by, the payee as a mere receipt or mem-
CONSIDERATION. 47

orandum of such advancements, and that the mutual understanding
between the parties thereto was that payment thereof would never be
demanded. Ib.

The giving of a promissory note by a debtor for the amount of an
existing indebtedness is presumed not to be in payment of the debt,
but as collateral thereto. Therefore, in an action for rent, wherein
it appears that certain notes, equal in amount to the rent due for cer-
tain months, were given by one of the tenants, unless it appears from
the evidence that the plaintiffs or their duly authorized agent agreed
to accept them in payment for the rent, such notes cannot be regarded
as in payment thereof. Price vy. Coblitz, 12 Circ. Dec, 34. (1901.)

A compromise settlement is sufficient consideration for a contract
of indorsement. Markey v. Waldo, 9 Circ. Dec. 762. (1898.)

Giving up a claim for secured notes is a sufficient consideration
for a new guaranty upon an old note which the holder of such claim
was allowed to retain, and for a new note given in satisfaction of such
old note. Cahill v. Smith, 6 Circ, Dec, 74 (9 R. 4). (1894.)

Where the wife of one of the members of an insolvent firm agreed
that if compromise notes of such firm were not demanded by a creditor,
she would, and did, guarantee the note held by the creditor, and this
note was renewed, by a new note signed by the firm and by the wife
as makers, there was a good consideration for such guaranty and re-
newal. Ib.

An agreement to forbear suit on a pre-existing debt is sufficient
consideration for a note given therefor or to support an accommoda-
tion indorsement made at the time of the execution and delivery of
such note. Colver v. Wheeler, 5 Circ. Dec. 278 (11 R, 604). (1895.)

A good consideration passing between payee and principal debtor
is a good consideration for a second signer, though the payee knew
that the second signer signed as surety. Cordes v. Lindeman, 6 Circ.
Dee. 53. (1893.)

Where an indorser who becomes responsible for the debt on the
note of a corporation, extends the time of payment and releases the
corporation and other indorsers thereon and returns the security to
the obligor, it is a sufficient consideration for a mortgage on his own
property. Thompson Nat. Bank v. Corwine, 12 O. F. D, 598. (1898.)

Every presumption of law favors the validity of promissory notes
given in settlement of subscriptions in aid of college endowments, and
the onus is on the one impeaching the validity thereof. Sturges v.
Colby, 4 O. F, D. 502. (1878.)

The consideration must not only be valuable, but fair and reason-
able, taking into consideration the pecuniary responsibility of the par-
ties to the note, the danger of loss, ordinary expense and trouble of col-
lection, probable delay in payment and every other thing which affects
the actual value of the note. Wilhelm v. Snowden, Ohio Dec. (Dayt.)
435. (1869.)
48 OHIO NEGOTIABLE INSTRUMENTS.

A purchase of a note for a proper consideration would be in the
usual course of trade, but the consideration must not only be valuable
‘but fair and reasonable, and whether it is so is a question for the jury.
Ib.

A consideration for the purchase of a note need not be the full face
value in order to be fair and reasonable or that it should be discounted
cat only its legal rate of interest, as a purchaser has a right to make a
reasonable profit on his money. Ib,

Notes given by a firm by one partner with authority of the other
must be supported by a sufficient consideration, and where such notes
‘were given for the use of a patented article, such article must prove
useful and beneficial or it will not furnish a consideration to support
such notes. Mitchell v. Stickle, Ohio Dec. (Dayt.) 264. (1869.)

Where an indorser, ignorant of the fact that liability has never
been fixed by demand and notice, promises to pay on the supposition
that he is legally liable, his mistake of fact avoids the new promise
and there is no sufficient consideration to support it. Graflin v. Gib-
son, 3 Re. 236.

317ly (4923) [What Constitutes Holder for Value.]
‘Where value has at any time been given for the instrument,
the holder is deemed a holder for value in respect to all parties
‘who became such prior to that time.

The holder of a note payable to a payee named in it, or bearer, is
held to be the owner prima facie, and he is not called to prove that he
purchased. Starling v. Kious, 7 Ohio (pt. 2) 238. (1836.)

Where a draft is deposited with a bank by a holder, and the bank
‘places the draft to the depositor’s credit as cash and pays his checks
drawn on it, the bank becomes the owner of the draft for value. Arm-
‘strong v. Bank, 6 O, F. D. 509. (1890.)

A rule of court dispensing with proof of title by plaintiff in an
action on a note, unless defendant files affidavit denying plaintiff’s title,
is proper. Mills v. Bank, 1 O, F. .D, 144. (1826.)

3171lz (4924) [When Lien on Instrument Constitutes
Holder for Value.] Where the holder has a lien on the instru-
ment, arising either from contract or by implication of law, he
is deemed a holder for value to the extent of his lien.

A G, in Pittsburg, drew upon his debtors in Zanesville for $114.04,
‘subject to his own order, and indorsed the draft to W M & Co., exchange
‘brokers at Pittsburg, who indorsed and sent it to H N K, an exchange
broker at Zanesville, for collection, who received the money upon it.
Before the payment of the draft, W M & Co. failed, and were indebted
to H N K ina sum larger than the amount of the draft, which indebted-
ness grew out of their dealings as exchange brokers. When the latter
received the draft he had no notice that A G was its owner, but had
CONSIDERATION. 49

such notice before the money was paid: Held, that H N K might re-
tain and apply the ptoceeds of this draft on his own account against
WM &Co. Gordon v, Kearney, 17 Ohio 572. (1848.)

3172 (4925) [Effect of Want of Consideration.] Absence
or failure of consideration is matter of defense as against any
person not a holder in due course; and partial failure of con-
sideration is a defense pro tanto, whether the failure is an
ascertained and liquidated amount or otherwise.

WHEN CONSIDERATION MAY BE INQUIRED INTO.

Where goods are sold on credit, it is an implied condition of the
contract that the buyer shall keep his credit good; and the seller is
not bound to deliver the goods if the buyer be insolvent. The fact
that the buyer has given his note or bill for the price, payable at the
expiration of the credit, does not vary the rule. Diem v. Koblitz, 49
Ohio St, 41. (1892.) If the insolvency of the buyer is discovered by
the seller, while he yet has the goods, or while they are in transit,
and he retakes them, he may elect to treat the agreement for credit
as at an end, and resell the goods unless the buyer pay or tender the
price agreed on. Ib.

While it is necessary that the consideration of a promise should
be of some value, it is sufficient if it be such as could be valuable to
the party promising; and the law will not enter into an inquiry as to
the adequacy of the consideration but will leave the parties to be the
sole judges of the benefits to be derived from their contracts, unless
the inadequacy of consideration is so gross as of itself to prove fraud
or imposition. Judy v. Louderman, 48 Ohio St. 562. (1891.)

In an action by the payee upon a specialty, the defendant may, un-
der Sec. 5071, Rev. Stat., allege the want or failure of consideration,
and such allegation will constitute a good ground of defense. Ib.

In an action on a note, the defendant may plead a denial of the
execution of the note, and that there was no consideration therefor;
and it igs error, in such case, to require him to elect on which of the
two defenses he will proceed to trial. Pavey v. Pavey, 30 Ohio St. 600.
(1876.)

Parol evidence is admissible to show the consideration of a note,
and to show that the consideration in whole or in part has failed; but
it cannot be received to contradict the terms of the note, or to attach
to it conditions. Holzworth v. Koch, 26 Ohio St. 33. (1875.)

Where a defendant, by way of defense to a note, pleads, in general
terms, that it is wholly without consideration and void, and the plain-
tiff, without requiring a statement of the facts on which the defense is
based, joins issue, any evidence is admissible on the trial which tends

4
50 OHIO NEGOTIABLE INSTRUMENTS.

to impeach or sustain the consideration. Chamberlain v. Railway Co.
15 Ohio St, 225. (1864.)

In an action upon a renewed note, into which illegal interest has
been incorporated, the consideration may be inquired into, and the
illegal interest deducted. Baggs v. Loudenback, 12 Ohio 153. (1843.)

In every case the consideration may be inquired into for the pur-
pose of detecting illegal interest and disallowing it, unless there has
been a voluntary and full liquidation and payment of interest between.
the parties. Ib.

Where A made a promissory note payable to B, and to be assigned
to C, upon his paying a sum of money and performing certain labor
for A, the payment of the money and performance of labor constitute
the consideration of the note; and in a suit upon it against A by C,
who has obtained an assignment, his non-performance may be shown to
defeat a recovery. Brown v, Willis, 18 Ohio 27. (1844.)

Between the parties to a note, the consideration may be inquired
into. Murphy v. Hagerman, Wright 294. (1833.)

Want of consideration is a good defense in an action upon a note
between the original parties to the note. Clark v. Clark, 9 Cire, Dec.
476. (1898.)

The defense of failure of consideration cannot be set up in a suit
on a promissory note when the defendant received the property called
for by the contract, although it was of only nominal value until de-
fendant has lawfully rescinded the contract for fraud or breach of war-
ranty and tendered back the property received, except by way of re-
coupment for damages by breach of warranty. Boggs v, Wann, 7 O.
F, D, 489. 1893.)

Want of consideration cannot be shown against a bona fide holder
for value, such holder not being the drawer’s agent in delivering the
bill to the payee. Armstrong v. Bank, 6 O. F. D. 509. (1890.)

The indorsee of a note transferred before maturity who is ignuvrant
of any infirmity affecting it can recover against the maker, although
as to him there hag been a failure of consideration. Pease v. McClel-
land, 4 O. F, D. 82. (1866.) ;

Inadequacy of consideration is not a good defense at law to a suit
upon a promissory note when unaccompanied by misrepresentation,
but is available only by bill in equity. Boggs v. Wann,7 O F D. 439.
(1833.)

EFFECT OF WANT OF CONSIDERATION.

Partial failure of consideration is no bar to an action on a promis-
sory note, but merely entitles the maker to recoupment for damages,
or abatement of the plaintiff’s demand to the extent the maker has
suffered loss by the failure. Holzworth v, Koch, 26 Ohio St, 83. (1875.)

Where the whole or part of the consideration of a bill of exchange
is illegal, the whole bill is void. Where such bill is given for two dis-
CONSIDERATION. 51

tinct considerations, neither of which is unlawful, and one is valid, but
the other is void at common law, or by statute, as between the parties
thereto, the bill will be held valid to the extent of the good considera-
tion and void as to the rest. Doty v. Bank, 16 Ohio St. 133. - (1865.)

A note payable in bills of a particular bank, without reference to
their value or currency, is not commercial paper, and want of con-
sideration is a good defense to an action thereon by the indorsee against
the maker. Shamokin Bank v. Street, 16 Ohio St. 1. (1864.)

A note given in consideration of a sale of diseased sheep, which
sale was within the provisions of the act of February 17, 1857, to pre-
vent the spread of disease among sheep, is not void. By the proviso
in the first section of said act, it was intended to leave the rights of
the party sustaining damage by reason of such sale, unchanged by the
statute. Vining v. Bricker, 14 Ohio St. 331. (1863.)

The gift of the maker’s own note is the delivery of a promise
only, and not of the thing promised; and upon the death of the maker,
leaving the promise unfulfilled, the gift fails. Starr v. Starr, 9 Ohio
St, 75. (1858.) Such gift being without consideration, no recovery
can be had on the note against the executor of the maker. The case
of Hamor v. Moore’s Admrs. 8 Ohio St. 239, followed and approved. Ib.

An agreement with the principal to give time, without a good con-
sideration, does not discharge a surety. Farmer’s Bank v. Raynolds,
13 Ohio 85. (1844.) ,

Statements of the officers of a bank and acts by it inconsistent
with its right to collect a note held by it will not estop the bank from
collecting such note when induced solely by the maker’s statements in
respect to which such acts were done and that such note was wholly
without consideration. Bohl v, Carson, 8 O. F. D. 222. (1894.)

In this case the court held that total failure of consideration was
a good defense to a note. Slacom v, Wishart, 2 0. F. D, 331. (1844.)

EVIDENCE—ACTIONS—PLEADINGS,

In an action on a promissory note, a denial of its execution and
delivery is consistent with a separate ground of defense that the note
is without consideration. Booco v, Mansfield, 66 Ohio St, 121. (1902.)

When both defenses are made, and the plea of want of consideration
is in general terms, it is error for the court to require the defendant
to make the same definite and certain “by setting forth the facts and
circumstances connected with the note which rendered it without con-
sideration,” and the error is continued in striking the defense from
the answer for noncompliance with such order. The case of Chamber-
lain v. Railway Co. 15 Ohio St, 225, distinguished. Ib.

Where a party, claiming and representing himself to be, under
letters patent granted by the United States, invested with the ex-
clusive right to make and sell a certain machine within a given terri-
tory, enters into a contract with another party purporting to grant to
52 OHIO NEGOTIABLE INSTRUMENTS.

the latter the exclusive right to manufacture and sell such machine
within said territory, in consideration whereof the latter agrees to pay
the former a specified patent fee for each machine which he shall manu-
facture and sell, and after a number of such machines have been manu-
factured and sold, a promissory note is executed by the latter to the
former for the amount of fees accrued: Held, in an action on such note
by the payee against the maker, an answer simply averring, in sub-
stance, that certain third parties named claimed that the manufacture
and sale of said machine by the maker of the note was an infringement
of prior patented rights to them, is no defense to the action, and bad
on general demurrer. That in an action by the payee against the maker
of the note, the latter is estopped to deny a consideration for said note
either on the ground of the inutility of or the want of novelty in said
machine. Davis v, Gray, 17 Ohio St, 330. (1867.)

Money paid upon a mistake of facts, and without consideration,
may, as a general rule, be recovered back. Ellis v. Ohio Life Ins. Co.
4 Ohio St. 628. (1855.)

A plea to a declaration in debt, that the defendant “did not agree to
pay said plaintiff said several sums of money, or any part thereof, in
manner and form as said plaintiff hath alleged against him,” not having
been demurred to, is good after verdict as a plea nil debit. Stull v.
Wilcox, 2 Ohio St, 570. (1853.)

An unsealed note is inadmissible in evidence, under a special count
in a declaration in debt, describing the evidence of debt as a writing
obligatory. Ib. '

A party whose name appears upon negotiable paper is not a
competent witness to impeach its consideration. Bodkins v. Taylor,
14 Ohio 489. (1846.)

Money paid on notes given for a:void patent right may, on the
ground of failure of consideration, be recovered back. Darst v. Brock-
way, 11 Ohio 462. (1842.)

Declaration upon an indorsement of a promissory note, guarantee-
ing payment by the maker of the note, must aver the consideration
upon which such indorsement is made. Greene v. Dodge, 2 Ohio 431.
(1826.)

On suit by an indorsee of a note given “in part pay for, and secured
by vendor’s lien on a leasehold interest,” it is not error to exclude evi-
dence of failure of consideration as to one piece of land for which the
note was given, where the defense stated at the time that they did
not expect to prove knowledge on the part of plaintiff that there was a
partial failure of consideration. Hyde v. Bank, 1 O. S. C, D. 204 (32
Bull. 317). (1894.)

No consideration, negligence of the holder and defenses available
at law cannot form the foundation of a bill in equity to enjoin prosecu-
tion of an action on the note, Bohl v. Carson, 8 O. F, D. 222. (1894.)
CONSIDERATION. 53

Rescission of contract and tender back of worthless stock are not
necessary before a defense of failure of consideration may be made.
Boggs v. Wann, 7 O, F. D. 439. (1893.)

The defendant in a suit upon a promissory note who pleads a want
of consideration may be required, by motion to make more definite and
certain, to set forth the specific facts upon which such defense is based,
Eagle Ins. Co. v, Blymyer, 10 Dec, 417 (8 N. P. 275). (1900.)

An answer based upon want of sufficient consideration should set
forth the specific facts, or a motion to make more definite and certain
will be sustained. Eagle Ins, Co. v. Blymyer, 10 Dec, 417 (8 N. P. 275).
(1900.)

3172a@ (4926) [Liability of Accommodation Party.] ‘An
accommodation party is one who has signed the instrument as
maker, drawer, acceptor, or indorser, without receiving value
therefor, and for the purpose of lending his name to some other
person. Such a person is liable on the instrument to a holder
for value, notwithstanding such holder at the time of taking
the instrument knew him to be only an accommodation party.

A promissory note is not without consideration as to one who exe-
cutes it as surety, although the consideration as between the principal
and the payee is the doing of an act by the latter which a previous
contract had bound him to do, if the surety was not a party to such
previous contract and its performance was waived by the principal
while it was yet executory. The Merchants’ National Bank of Cin-
cinnati v. Ryan et al. 67 Ohio St. 448. (1902.)

The rule that when a principal indemnifies one of several sureties,
each is entitled to share therein, does not apply where such indemnity
is furnished by a stranger for the sole and exclusive benefit of one.
Leggett v. McClelland, 39 Ohio St. 624. (1884.)

One, not induced by fraud, who indorses a negotiable promissory
note owned by another, for his accommodation, without restriction as
to its use, is liable to an indorsee who receives it in good faith from
the owner, before due, as collateral security for an antecedent debt of
such owner, although there be no other consideration for giving such
collateral. Roxborough v, Messick, 6 Ohio St. 448, distinguished. Pitts
v. Foglesong, 87 Ohio St. 676. (1882.)

Where the payee of a bill of exchange brings a suit against the
two drawers, one of whom is served with process,-the writ as to the
other being returned “not found” the defendant at the trial may give
parol evidence to show that he and the plaintiff by a prior agreement
between themselves were, when they severally drew and indorsed the
bill, joint securities for the accommodation of the other drawer, and
“ by such proof defeat the action, if he has paid upon the bill an amount
equal to that paid by the plaintiff. Kelley y, Few, 18 Ohio 441. (1849.)
54 OHIO NEGOTIABLE INSTRUMENTS.

An accommodation drawer of a bill of exchange made payable to
a particular bank, for the purpose of being discounted by the bank
named, cannot be held liable on the bill to a third person, who, after
discount by the bank had been refused, took the bill from the principal
for value; nor can he be held liable to the bank, where it subsequently
discounts the bill of such third person, with notice of the suretyship
of the drawer. Knox County Bank v, Lloyd’s Admrs, 18 Ohio St. 353.
(1868.)

The form of a contract is by no means decisive of its real character.
The question is not, what did the partivs call it, but what do the facts
and circumstances require the court to call it. In such cases the
distinction is well taken between business and accommodation paper.
Corcoran v, Powers, 6 Ohio St. 19. (1856.)

Indorsers of promissory notes, indorsed for the use and accommo-
dation of the drawer, are cosecurities, and the last indorser cannot re-
cover more than a contributable share against a previous indorser.
Douglas v. Waddle, 1 Ohio 413. (1824.)

A corporation organized to manufacture has no power to sell the
output of another corporation on commission, to make advances to it
to enable it to increase its output, or indorse its notes for accommoda-
tion. Holmes v, Hayes, 1 O. S. C. D, 206 (32 Bull, 346). (1894.)

Where a corporation note, payable te another corporation, is pre-
sented for discount by the president of the maker, and payee’s name
is indorsed thereon by an agent of payee as agent, the presumption is
that the indorsement was for accommodation, but such presumption
may be rebutted by the facts that it was placed in such president’s
hands to have its discount negotiated by him for the payee. Ib.

A partner cannot, unless expressly authorized, sign the firm name
to a note as an accommodation indorser. Union Nat, Bank v. Wickham,
6 Circ. Dec. 790. (1894.)

In order to make an agreement to use an accommodation note for
a certain purpose a defense, it must be established that at the time the
note was discounted, the holder had notice of such agreement. Bank v,
Irons, 5 O. F, D, 15. (1881.)

Re-Subdivision 3.

NEGOTIATION,

3172b (4927) [What Constitutes Negotiation.] An in-
strument is negotiated when it is transferred from one person
to another in such manner as to constitute the transferee the
holder thereof. If payable to bearer it is negotiated by delivery.
If payable to order it is negotiated by the indorsement of the
‘holder completed by delivery.
NEGOTIATION. 55

The maxim that one who seeks the aid of a court of equity must
come with clean hands has especial application to a case where the
owner of promissory notes has, without valuable consideration, placed
the legal title to the same in another by an instrument in writing
purporting to be a deed of trust, but which, if given full effect, would
avoid the payment of taxes upon the property at the place of such
party’s residence. And where the conduct of the party, taken in con-
nection with the terms of the instrument, indicates a purpose to retain
in himself the full and actual control of the property, and he does
in fact maintain such exclusive control, and also shows unmistakably
that the real purpose of the transaction was to escape the payment of
taxes in the taxing district where he resides, the court will refuse to
enjoin the county auditor from placing such property on the duplicate
for taxation. Sisler, Auditor, v. Foster, 72 Ohio St. 437. (1905.)

Where the form of a promissory note with blank spaces, payable
to payee or bearer, was printed, and after the spaces were filled, the
maker signed his name in front of a device consisting of a bracket and
the word seal therein, thus “(seal),” which device was also a part of
the form and was printed in ink: Held, (1) That the device mentioned
is “a scrawl seal,” and under the statute of this state has the effect of
a common law seal. (2) That by affixing his signature in front thereof,
the maker adopted the device as his seal. (3) Such a sealed note is
only negotiable by virtue of the statute which requires the negotiation
to be by “indorsement thereon.” (S. & C, 862.) (4) In an action on
such a note in the name of the holder to whom it was transferred by
mere delivery, the maker may set up any defense he could have made
against the payee. Osborn v, Kistler, 35 Ohio St, 99. (1878.)

A sealed note or bill, made payable to the payee or order, can be
negotiated “so as absolutely to transfer and vest the property thereof”
in the indorsee, only “by indorsement thereon,” as authorized by the
statute. Cushman vy. Welsh, 19 Ohio St. 536. (1869.)

A promissory note, payable to a person or bearer, is negotiable by
delivery, Avery v. Latimer, 14 Ohio 542. (1846).

A sealed biJl or note, payable to bearer, is only negotiable by in-
dorsement. Ib,

Where a note is indorsed to a firm, proof, as of other facts, is re
quired of the existence of the partnership. Wright 481. (1833.)

A promissory note reciting that: “This note is given in part pay for,
and is secured by a vendor’s lien on a leasehold interest, on his interest
in a lease this day sold by him to us, the leased land laying in Stark
county, Ohio, including buildings, implements, machinery and other
property used in ice cutting business on the leased land,” is negotiable
by indorsement. Hyde v. Bank, 1 O. S. C. D. 204 (32 Bull, 317).
(1894.)
56 OHIO NEGOTIABLE INSTRUMENTS.

One appointed to negotiate a note has authority to receive a
certificate of deposit by a bank instead of money, and the makers of
the note are liable. Poorman v. Woodward, 3 O, F, D. 449. (1858.)

An assignment of a note is a new contract and is governed by
the laws of the place where it is made. Dundas v. Bowler, 2 0. F. D.
298. (1844.)

3172c (4928) [Indorsement; How Made.] The indorse-
ment must be written on the instrument itself, or upon a paper
attached thereto. The signature of the indorser without addi-
tional words is a sufficient indorsement.

Where the paper is not designed for the payee, and his indorse-
ment is also obtained to give the paper credit with a subsequent party,
the party indorsing at the time or before the paper is drawn, may
and should be treated as a second indorser. Greenough v, Smead,
3 Ohio St. 415. (1854.)

The legal import of an indorsement in blank, unrestricted and
unambiguous, cannot be varied by parol evidence. Spaulding v. Allen,
10 Circ, Dec. 397 (19 R. 608). (1899.)

3172d (4929) [Indorsement Must Be of Entire Instru-
ment.] The indorsement must be an indorsement of the entire
instrument. An indorsement which purports to transfer to the
indorsee a part only of the amount payable, or which purports
to transfer the instrument to two or more indorsees severally,
does not operate as a negotiation of the instrument. But where
the instrument has been paid in part, it may be indorsed as to
the residue.

Where a pretended mortgage debt is evidenced by a single promis-
sory note for a gross and entire sum, the purchaser of a fractional
part of the debt will be protected, on a pro rata basis, in his equitable
interest so acquired. Holmes v. Gardner, 50 Ohio St, 167. (1893.)

Where a debtor executes a mortgage on real estate with intent
to defraud his creditors, a bona fide purchaser for a valuable considera-
tion without notice, from the fraudulent mortgagee, of a part of the
pretended mortgage debt, will be protected against the claims of the
general creditors of such mortgagor. Ib.

The rule “that plaintiff can recover only the amount actually
paid” only applies between the indorser and indorsee and not between
the maker and indorsee. Boyd v. Cramer, Ohio Dec. (Dayt.) 42.
(1869.)

3172e (4930) [Kinds of Indorsement.] An indorsement
may be either special or in blank; and it may also be either re-
strictive or qualified or conditional.
° NEGOTIATION. 57

Every indorsement of a bill of exchange is a new contract, and
each indorser becomes to the subsequent holder a new drawer. Case
v. Heffner, 10 Ohio 180. (1840.)

3172f (4931) [Special Indorsement; Indorsement in
Blank.] A special indorsement specifies the person to whom,
or to whose order, the instrument is to be payable; and the
indorsement of such indorsee is necessary to the further nego-
tiation of the instrument. An indorsement in blank specifies
no indorsee, and an instrument so indorsed is payable to bearer,
and may be negotiated by delivery.

Banks organized under the “act to incorporate the State Bank
of Ohio and other banking companies,” passed February. 24, 1845, have
no power, by reason of the restriction of Sec. 64 of said act, to dis-
count negotiable notes, unless their negotiability be restricted by special
indorsement. Vanatta v. State Bank, 9 Ohio St. 27. (1858.)

A payee owning the bill may limit its payment to whom he pleases.
Lee v, Bank, 3 O. F. D. 593. (1860.)

An indorsement to pay for the use or account of the indorser is
notice that the indorsee has a right to dispose of the bill as if it were
his own property. Ib.

A note indorsed in blank passes by mere delivery, and not by as-
signments, the same as if drawn payable to bearer. McClure v.
Bowles, 5 Dec. 288 (5 N. P. 327). (1898.)

8172g (4932) [Blank Indorsement; How Changed to
Special Indorsement.] The holder may convert a blank indorse-
ment into a special indorsement by writing over the signature
of the indorser in blank any contract consistent with the char-
acter of the indorsement.

In an action by an indorsee against his indorser, the question
whether a blank indorsement was made in the usual course of trade,
for the purpose of transferring title, and as evidence of a contract
of indorsement, is issuable; and under such issue the indorser may
prove that his name was written on the back of the instrument at
a different time and for a different purpose; also, he may prove, as
part of the res gestae, the declarations and conversation of the parties
at the time of the transfer. Hudson v. Wolcott, 39 Ohio St. 618.
(1884.)

Where a negotiable note is indorsed in blank for the accommo-
dation of the maker, the contract of the indorser is single and entire,
and the holder of the note cannot fill up the indorsement so as to
make the note payable part to one person and part to another without
the consent of the parties to the note. Erwin v. Lynn, 16 Ohio St.
539. (1866.) Where the makers of a note so indorsed, delivered it
58 OHIO NEGOTIABLE INSTRUMENTS.

to a party as security for their note of a less sum, between both of
‘whom and a second party it was subsequently agreed that the note
should also be held by the first party as security for a note of the
makers to such second party, a judgment recovered against the in-
dorsers, in a suit by such first party, for the amount due on his note, with-
out including the amount due on that of the second party, merges the
contract of indorsement, and such second party cannot maintain an
action thereon against the indorsers for the amount for which it was
so held as security for him. Ib.

If, in case a note is indorsed in blank, the holder of the note
subsequently and without authority writes over the name of A a guar-
anty of payment and waiver of demand and notice, A will not thereby
be discharged from the obligation of his contract. The unauthorized
portion of such writing may at any time be cancelled, or it will be
disregarded and the actual contract will be enforced. Seymour v.
Mickey, 15 Ohio St. 515. (1864.)

3172h (4933) [When Indorsement Restrictive.] An in-
dorsement is restrictive which either:

1. Prohibits the further negotiation of the instrument; or

2. Constitutes the indorsee the agent of the indorser; or

3. Vests the title in the indorsee in trust for or to the use
-of some other person. 7

But the mere absence of words implying power to negotiate

does not make an indorsement restrictive.
Whether an indorsement is restrictive depends upon the intention
of the parties as expressed. Lee v. Bank, 3 O. F, D. 593. (1860.)
An indorsement on a bill of exchange in the words “credit my
account—James B. Scott, cashier,” is restrictive in character and sus-
pends the further transfer and negotiability of the bill. Lee v. Bank,
30. F. D, 601. (1860.)

31721 (4934) [Effect of Restrictive Indorsement; Rights
of Indorsee.] A restrictive indorsement confers upon the in-
dorsee the right:

1. To receive payment of the instrument;

2. To bring any action thereon that the indorser could
bring ;

8. To transfer his rights as such indorsee, where the form
of the indorsement authorizes him to do so.

But all subsequent indorsees acquire only the title of the

first indorsee under the restrictive indorsement.
Where a negotiable promissory note is indorsed for collection and
.sent to the place of payment, the person receiving such note with such
NEGOTIATION. 59

indorsement, has no power to sell or transfer the note. Hig power is
limited to collection. The People’s and Drover’s Bank y. Craig, Admr.
63 Ohio St, 374. (1900.)

If payment of a note indorsed and sent for collection is made with
the assent of the maker, he becomes liable ag for money paid to his
use, or liable on the note as a reissued note; but as to a maker who
does not assent to such payment, there is no liability either on the note
or for money paid to hig use. Ib.

Where a negotiable promissory note is indorsed for collection and
sent to the place of payment, the person receiving such note with such
indorsement has no power to sell or transfer the note. His power is
limited to collection. Ib.

Where a person receiving a note endorsed for collection, remits
the amount thereof out of his own funds to the owners as though he
had in fact collected the note, such transaction ig a payment and ex-
tinguishment of the note, and not a transfer thereof. Ib.

A person making payment of a note indorsed and sent for col-
lection is, as to non-assenting makers, a volunteer, and not entitled
to subrogation. Ib.

An indorsement of a check, draft, or bill of exchange, “for collec-
tion,” by one other than the payee, does not guarantee that the name
of the drawer is genuine. First National Bank of Belmont v. First
National Bank of Barnesville, 58 Ohio St, 207. (1898.)

Such indorsement is a guaranty that the names of the indorsers,
then on the paper, are genuine. Ib.

An indorsement “for collection,” is notice to the drawee that
the indorsee is not the owner of the paper, but only the agent of the
owner authorized to receive payment for him. Ib,

A party to whom a negotiable promissory note payable to order
is transferred by mere delivery, and for the mere purpose of collection,
cannot maintain an action thereon in his own name against the maker.
Nichols v. Gross, 26 Ohio St, 425. (1875.)

The indorsement of an overdue promissory note, in blank, by the
holder, does not authorize an attorney with whom it is left for col-
lection to make a compromise settlement thereon. Holden v, Lippert,
4 Cire, Dec. 527 (12 R. 767).

Notes indorsed in blank for collection by an attorney are not dis-
charged by such attorney accepting a sum less than the amount due
thereon and the owner can collect the balance even though the maker
did not know that such indorsement was merely to enable the attorney
to collect. Ib.

An indorsement “for collection” is notice that possession is held
as agent and not as owner. Commercial Bank v, Armstrong, 7 O. F.
D. 487. .(1893.)

An indorsement on drafts forwarded from one bank to another
‘making them payable to the collecting bank “for collection” for the
60 OHIO NEGOTIABLE INSTRUMENTS.

forwarding bank, which were collected by the collecting bank after it
had passed into the hands of a receiver, passes the title thereto to the
latter and an agreement to charge back any draft unpaid does not
affect such result. First Nat. Bank v. Armstrong, 6 O, F. D. 3875.
(1889.)

A note indorsed “Pay Fidelity National Bank, Cincinnati, O., or
order, for collection for account of the Winters National Bank, Dayton,
Ohio. J. C, Reber, cashier,” ddées not transfer title but only creates
an agency and the first bank is entitled to the proceeds though the
second bank passes into thé hands of a receiver. Armstrong, In re,
5 O, F. D. 684. (1887.)

If a bill be restrictively indorsed, a subsequent indorsee takes it
upon the same trust that was devolved upon the first jindorsee. Lee
v. Bank, 3 O, F. D. 598. (1860.)

An indorsement to pay for the use or account of the indorser is
not an assignment of the security, but only an authority to receive the.
money, and imports that the indorsee receives the bill for a special
purpose and as trustee for the indorser. Ib.

A holder who takes a bill, the circulation of which is restricted
by an indorsement, cannot, in good faith, sue the drawer or acceptor
upon it but holds the bill or the money raised by him as the trustee of
the restraining party. Lee v. Bank, 3 O. F, D. 601. (1860.)

Where, in a suit to recover money paid by mistake to the payee
of a note by a bank to which it was sent for collection, and the maker
of the note afterwards became insolvent, it appears that an attach-
ment, at the time of the maker’s insolvency, would have failed and that
no preference could have been secured after default upon the note, the
plaintiff is entitled to recover. Bank v. Burger, 9 Dec, 824 (41 Bull.
2). (1889.)

A written instrument given upon the receipt of notes, reciting that
the notes are received for collection and as collateral security for
debts due, describing the notes, is not simply a receipt for the notes,
but a contract evidencing the agreement of the parties as to the dis-
position which should be made of them. Kneisley’s Admr, v. Kneisley,
Ohio Dec. (Dayt.) 221. (1872.)

3172j (4935) [Qualified Indorsement.] A qualified in-
dorsement constitutes the indorser a mere assignor of the title
to the instrument. It may be made by adding to the indorser’s
signature the words ‘‘ without recourse,’’ or any words of similar
import. Such an indorsement does not impair the negotiable
character of the instrument. 7

A defense to an action on a promissory note, that an indorsement
without recourse was made in consideration of the payment of the
note, and not of its sale and transfer, must be proved by clear and
NEGOTIATION. 61

convincing proof, a preponderance of evidence not being sufficient.
Olinger v. McGuffey, 1 0. S. C. D, 526 (86 Bull. 305). (1896.)

A person indorsing a certificate of deposit, but not intending to
be bound thereby, having been assured by the indorsee that the in-
dorsement was merely to enable him to collect it, ought not to be
bound by the rules applicable to indorsements of notes and bills. Funk
v. Ellis, 3 Re, 310. 1860.)

Where an indorsement is not in blank, but states “with recourse”
on the endorser, such indorsement does not waive demand and notice.
Newcomer v,. Hollingsworth, Ohio Dec, (Dayt.) 277. (1872.)

3172k (4936) [Conditional Indorsement.] Where an
indorsement is conditional a party required to pay the instru-
ment may disregard the condition and may make payment to
the indorsee or his transferee, whether the condition has been
fulfilled or not. But any person to whom an instrument so in-
dorsed is negotiated, will hold the same, or the proceeds thereof,
subject to the rights of the person indorsing conditionally.

31721 (4937) ° [Indorsement of Instrumént}Payable to
Bearer.] Where an instrument ‘payable to bearer is indorsed
specially, it may nevertheless be ‘Further negotiated by delivery,
but the person indorsing specially is liable as indorser to only
such holders as make title through his indorsement,

3172m (4938) [Indorsement Where Payable to Two or
More Persons.] Where an instrument is payable to the order of
two or more payees, or indorsees who are not partners, all must
indorse, unless the one indorsing has authority to indorse for

the others.

Where a note is made payable to two or more persons as joint
creditors, either has an implied authority as agent of the others to
take a mortgage and make the affidavit thereon required by Sec. 4154,
Rev, Stat., for the purpose of securing its payment. Voss v. Murray,
50 Ohio St. 19. (1893.)

When negotiable paper is indorsed to A and B, jointly, a subse-
quent indorsement by B to A of his interest will vest in A the entire
legal interest. Logue v. Smith, Wright 10. (1831.)

3172n (4939) [Effect of Instrument Drawn or Indorsed
to a Person as Cashier.] Where an instrument is drawn or in-
dorsed to a person as ‘‘cashier’’ or other fiscal officer of a bank
or corporation, it is deemed prima facie to be payable to the
bank or corporation of which he is such officer; and may be
62 OHIO NEGOTIABLE INSTRUMENTS.

negotiated by either the indorsement of the bank or corporation
or the indorsement of the officer.

While a negotiable note executed by an officer of a corporation
having no authority to execute such paper is void, if such officer has
authority to execute such paper for the use of the corporation, and ex-
ceeds his authority, the note will be good as against the corporation
in the hands of a bona fide holder for value. Dexter Savings Bank v.
Friend, 12 0. F, D. 208. (1898.)

An officer of a corporation who falsely represented that he had
authority to execute negotiable notes for the corporation is liable to
a holder of such notes for such false representations, but when he
had authority to execute such notes for the use of the corporation,
but abused his authority, he is not liable either in damages or on
the notes to a holder thereof, as the latter must look to the corporation
therefor. Ib,

The cashier of a bank has authority to assign its notes. Blair v.
Bank, 4 O. F. D. 476. (1877.)

The indorsement of a cashier of a bank to bind the bank must be
within the scope of his duties as cashier, as he has no authority to
indorse accommodation paper so as to bind his bank, which does not
pass through it in the usual line of business. Ib.

Where a note is made payable to M, cashier, the presumption is
that it is the property of the bank of which he is cashier, and if in-
dorsed by the cashier to another bank for discount, it would be in
effect asking the bank to discount it for the bank of which M was
cashier, and if thus discounted and the proceeds are received by the
cashier, the bank of which he was cashier will be liable no matter
what the cashier did with the money. Ib,

Where a note payable to the cashier of a bank is discounted by
the bank and no personal security demanded of the maker, it is but
evidence of a loan between the parties. Lee v. Hartwell, 3 Re, 225.
(1860.)

31720 (4940) [Indorsement Where Name is Misspelled,
et cetera.] Where the name of a payee or indorsee is wrongly
designated or misspelled, he may indorse the instrument as
therein described, adding, if he think fit, his proper signature.

3172p (4941) [Indorsement in Representative Capacity.]
Where any person is under obligation to indorse in a repre-
sentative capacity, he may indorse in such terms as to negative
personal liability.

3172q (4942) [Time of Indorsement; Presumption.] Ex-
cept where an indorsement bears date after the maturity of the
instrument, every negotiation is deemed prima facte to have
been effected before the instrument was overdue.

eee,
NEGOTIATION. 63.

In the absence of all circumstances warranting a presumption of
fraud, an indorsement takes effect from its date and not from the time
of its delivery. Fossitt v. Bell, 2 0. F. D, 563. (1848.)

Where L being insolvent and the debtor of F, without his knowl-
edge procures and indorses the note to B, his debtor, and places it in
the hands of G to be held for the benefit of F, and G holds it until it
is past due and then delivers it to F, in the absence of all circum-
stances warranting a presumption of fraud, the indorsement of F takes
effect from its actual date and not from the date of its delivery. Ib.

If a note is negotiated after maturity, the indorsee receives it
subject to all the rights and equities existing between the maker and
payee before indorsement; and the fact that a note is overdue is suf-
ficient to put the indorsee on his guard. Slacom v. Wishart, 2 O. FP.
D, 331. (1844.)

3172r (4943) [Place of Indorsement; Presumption.] Ex-
cept where the contrary appears, every indorsement is presumed.
prima facie to have been made at the place where the instrument
is dated. =

“3172s (4944) [Continuation of Negotiable Character.]
An instrument negotiable in its origin continues to be negotiable
until it has been restrictively indorsed or discharged by pay-
ment or otherwise.

A charitable institution can transfer and vest the title of a note
received as a donation to one to whom it is indebted for services
in raising money. Durrell v. Belding, 4 Circ. Dec, 263 (9 R. 74).
(1894.)

3172t (4945) [Striking Out Indorsement.] The holder
may at any time strike out any indorsement which is not neces-
sary to his title. The indorser whose indorsement is struck out,
and all indorsers subsequent to him, are thereby relieved from
liability on the instrument.

3172u (4946) [Transfer Without Endorsement; Effect
of.] Where the holder of an instrument payable to his order
transfers it for valueyyithout endorsing it, the transfer vests in
the transferee sucl{ title as ‘the transferrer had therein and the
transferee acquires in addition the right to have the indorsement
of the transferrer. But for the purpose of determining whether
the transferee is a holder in due course, the negotiation takes

effect as of the time when the indorsement is actually made.
If a note is passed to plaintiff without indorsement, he must show
how he came by the note. Fallis v. Smith, Wright 303. (1833.)
A a h !
64 OHIO NEGOTIABLE INSTRUMENTS.

3172y (4947) [When Prior Party May Negotiate Instru-
ment.} Where an instrument is negotiated back to a prior
party, such party may, subject to the provisions of this chapter,
re-issue and further negotiate the same. But he is not entitled
to enforce payment thereof against any intervening party to
whom he was personally liable.

Re-Subdivision 4.

RIGHTS OF THE HOLDER.

3172w (4948) [Rights of Holder to Sue; Payment.] The
holder of a negotiable instrument may sue thereon in his own
name; and payment to.him in due course discharges the instru-
ment.
RIGHT TO SUE,

When, in an action for the recovery of money only, commenced
in a justice’s court, the plaintiff recovers a judgment in that court, and
the defendant appeals the case to the court of common pleas and
there sets out in his answer, by way of counterclaim, a promissory
note which was not due at the time of the trial in the justice’s court,
and upon trial in the court of common pleas there is a finding in his
favor on the note and for the plaintiff for a less amount on his cause of
action, the defendant is entitled to a judgment in his favor for the
difference and for all his costs in both courts. Gordon y. Steinmetz,
71 Ohio St. 372. (1904.)

Where a certificate of deposit is lost by the payee, and the same
has never been indorsed by him, he may maintain an action at law
thereon against the maker, without tendering an indemnity against
future liability. Bank v. Brown, 45 Ohio St. 39. (1887.)

Sections 3171 and 3172 of the Revised Statutes, which define what
instruments are negotiable, and provide that the indorsee or holder
thereof may maintain an action thereon in his own name, must, in
determining who is thé proper party plaintiff, be construed in con-
nection with Sec, 4993, Rev. Stat, (formerly Sec. 26 of the code of civil
procedure), which requires actions to be prosecuted in the name of
the real party in interest, except as provided in Secs. 4994 and 4995.
Osborn v. McClelland, 48 Ohio St, 284. (1885.)

In case of the blank indorsement of negotiable paper, the indorsee,
who is in possession thereof, is prima facie the owner, and entitled to
sue thereon, but this presumption may be rebutted and the rights of
the real owner established. Ib,

Therefore, if such indorsee or holder, who is not thus protected,
sues to recover thereon, it is a good defense for the maker to show
RIGHTS OF THE HOLDER, 65

that he is not the real party in interest, unless he is authorized to sue
under Secs, 4994 and 4995. So the real owner may intervene, and, by
cross-petition, obtain the relief to which he is entitled, as against the
indorsee or holder, who is the apparent owner. Ib.

If the holder of a promissory note of a firm, after its dissolution,
accepts the note of one of the partners, payable at a future date, re-
taining interest for said time by discount, and agrees to release the
other partner, no action on the firm note can be maintained. Such
agreement may be implied from the acts of the parties. Bank v.
‘Green, 40 Ohio St, 431. (1884.)

The debtor of a bank, of which A was cashier, transferred a
negotiable note, in payment of his indebtedness, to A, by special in-
dorsement, and thereupon the bank, to enable A to bring suit thereon,
assigned its interest in the note to him: Held, that A might main-
tain an action on the note in his own name, notwithstanding he may be
accountable to the bank for the proceeds when collected. White v.
Stanley, 29 Ohio St, 423. (1876.)

_A party to whom a negotiable promissory note payable to order
is transferred by mere delivery, and for the mere purpose of collection,
cannot maintain an action thereon in his own name against the maker.
Nichols v. Gross, 26 Ohio St. 425. (1875.)

As a general rule, joint creditors cannot by a division of their
claim between themselves acquire a separate right of action against
their debtor, either at law or in equity; but where the debtor himself
procures the release of a part of them, he can not object to the others
proceeding against him in equity. Upjohn v. Ewing, 2 Ohio St. 14.
(1853.)

An officer of the state cannot maintain a suit in his own name
for an amount of money due to the state for tolls, penalties, etc., on
the national road, although he may have taken a note for the amount,
payable to himself, in his individual capacity. Hunter v. Field, 20
Ohio 340. (1851.)

Note made payable to A B, administrator of C D. A B dies; suit
must be brought in the name of the executor or administrator. McCoy
v, Gilmore, 7 Ohio (pt. 1) 268. (1835.)

Note payable to “A B, or bearer, in good merchantable whiskey at
trade price,” cannot be sued by assignee or bearer in his own name.
Rhodes v. Lindly, 3 Ohio 51. (1827.)

The holder of a note payable to R K, or bearer, in cattle, may re-
cover upon it in his own name. But he must aver and prove that the
note was delivered to him for a good consideration. Byington v. Ged-
dings, 2 Ohio 227. (1826.)

A promise that if the holder of a note having the equitable right
+o the money will forbear its collection for a given time, the defendant
‘will pay him, is good, Courts of law will protect the equitable interest
of assignees. Ford v. Rehman, Wright 434. (1833.)

5
66 OHIO NEGOTIABLE INSTRUMENTS.

The general rule is that he alone with whom an express contract
is made can sue it, suits on negotiable instruments resulting from
the statute and the cases where the person having the beneficial in-
terest in a contract may sue, form exceptions from the rule; they do
not establish a new one. Miller v. Beebe, Wright 431. (1833.)

The interest of an equitable holder of a note or bond not nego-
tiable may be protected in a court of law, but such holder acquires no
legal right to sue in his own name, although bond or note is assigned
to him. Moore v, Lancaster, Wright 35. (1832.)

An exchange of notes without any limitation upon the use of the
same vests the title thereto in the holder, and when discounted the
proceeds may be applied as the holder directs, and should he pay any
of such proceeds to the maker upon an account with him, or upon
notes given in settlement of the account, it would constitute a final
payment on account, although the holder failed to pay his own notes
given in exchange therefor when due. Lord et al, v. Graveson et al.
16 Cir. Dec. 371. (1904.)

A right to recover on a note cannot be affected by the party’s
knowledge that the effect of taking the note and mortgage to secure
the same would be to take the property that would have gone to other
creditors if the payee of the note had not secured or enforced his
claim, O’Keefe v. Mahoney, 20 O. C. C, 709; 10 Circe. Dec. 819. (1899.)

A holder who takes a bill, the circulation of which is restricted
by an indorsement, cannot, in good faith, sue the drawer or acceptor
upon it, but holds the bill or the money raised by him as the trustee
of the restraining party. Lee v. Bank, .3 0. F. D. 593, 601. (1860.)

Where an agent indorses a bill payable to him as agent without
designating his agency, he cannot maintain a suit upon the bill as he
has no legal title to it. Ib.

PARTIES——-PLEADING, ETC,

An action may be sustained on a destroyed promissory note, and
where 2 copy of the note is given with, or made part of the petition,
the destruction of the note need not be averred in the petition. Sar-
gent v. Railroad Co, 32 Ohio St. 449. (1877.)

In an action on a promissory note, where the petition is in the
form prescribed in Sec. 122 of the code, whether the plaintiff be an
original party to the note or not, the extrinsic facts, which show his
right or title to the note, need not be expressly averred. The allega-
tion of title is implied, by force of the statute, in the statement that
there is due to him a specific amount on the note which he claims. Ib.

In an action on a promissory note or bill of exchange, made pay-
able to several payees, one of them having become bankrupt, the as-
signee in bankruptcy must be a party plaintiff with the other payeeg,
and not the bankrupt himself. Pugh v. Holliday, 3 Ohio St. 285.
(1854.)
RIGHTS OF THE HOLDER. 67

If the bankrupt before decree has assigned a chose in the action
so as to pass all the beneficial interests to his assignee, suit may be
brought in the name of the bankrupt, for the use of the assignee. Ib.

An action upon a note must be brought in the name of the real
party in interest. If the plaintiff be not the real owner of the note,
but only a nominal party substituted for the real owner, there can be
no recovery. Baldwin v. Fox, Ohio Dec. (Dayt.) 11. (1872.)

PAYMENT.

The recovery of a judgment against the makers on a promissory
note signed by all the members of a copartnership and given for a con-
sideration received by the firm, does not extinguish the partnership
liability, nor exclude the creditor from participation in the distribu-
tion of the effects of the firm, in case of its insolvency, among the part-
nership creditors. Meier & Co, et al. v. First National Bank et al.
55 Ohio St. 446. (1896.)

As between a copartnership and a creditor thereof, a note given
in the firm name, without authority, by one partner, after dissolution,
for a debt of the firm, the parties to the note intending to bind, and
believing the note was binding on the firm, will not extinguish the firm
debt. Gardner et al. v. Conn et al. 34 Ohio St. 187. (1877.)

As between the partners. themselves, such transaction will not dis-
charge the non-consenting partner from liability to make contribu-
tion to the partner paying the debt. Ib.

When a debtor tenders a bank note in payment of a debt, and the
creditor expressly waives all objection to the medium of payment, and
objects only to the amount of the proposed payment, it is a good tender.
Jennings v. Mendenhall et al. 7 Ohio St. 258. (1857.)

It seems that mere silence on the part of the creditor, as to the
medium of payment, is not, in such case, conclusive evidence of such
waiver. Ib.

Payment made on a negotiable note before due or negotiated, will
avail, if the endorsee had notice of it when he took it; but without
such notice, the maker loses, because he neglects the endorsement of
the payment, and enables the holder to pass it away at its face. Chap-
pell v. Phillips, Wright 373. (1833.)

It is the duty of the maker of a negotiable instrument when he
pays it before maturity to cancel or destroy it. If he neglects to do
so, and it is payable to bearer, or bears a genuine indorsement in
blank or to bearer and is transferred to a party who takes it before
maturity for a valuable consideration, in the usual course of trade,
without knowledge that it had been paid, such payment is no defense
in a suit upon it by the transferee, Allen v. Jobnson, 11 Cire. Dec.
42 (20 R. 8). (1900.)
68 OHIO NEGOTIABLE INSTRUMENTS.

Indorsement of credit on a note is not prima facie evidence of
payment when not made by the party sought to be charged. Keel
v. Rudisell, 7 Cire. Dec, 464 (18 R. 199). (1896.)

A representation by a party presenting a draft that he is the
payee or the sole owner of the draft will not protect the bank against
the claim of a receiver of the real owner. Merrick v. Bank, 11 Dec.
298. (1900.)

Payment of a note by a third person extinguishes the note. Rob-
ertson vy. Case, 8 Dec, 386. (1898.)

31722 (4949) [What Constitutes a Holder in Due Course.]
A holder in due course is a holder who has taken the instrument
under the following conditions:

1. That it is complete and regular upon its face.

2. That he became the holder of it before it was overdue,
and without notice that it had been previously dishonored, if
such was the fact.

3. That he took it in good faith and for value.

4. That at the time it was negotiated to him he had no
notice of any infirmity in the instrument or defect in the title of
the person negotiating it.

In an action on a negotiable promissory note, when it appears
that the plaintiff is a purchaser before due, for value, in the usual
course of trade, it is not sufficient as a defense to show that he took
the note under circumstances that ought to have excited suspicion in
the mind of a prudent and reasonable man. To constitute a defense
the proof must show that, in purchasing the note, he acted in bad
faith, or with a want of honesty. Johnson v. Way, 27 Ohio St, 374, ap-
proved and followed. Kitchen v, Loudenback, 48 Ohio St. 177. (1891.)

D, by false and fraudulent representations, purchased and obtained
goods on credit from EB. Shortly after the purchase, to-wit: on Au-
gust 7, 1884, D was insolvent, and on that day transferred the goods
with other goods and merchandise to W, who, as a consideration for
the transfer, canceled and surrendered to D an interest bearing note
for $3,000 made by D himself to W, dated October 8, 1883, and due in
one year from date: Held, that W was not a bona fide purchaser for
‘a valuable consideration as against E. Eaton v, Davidson, 46 Ohio
‘St. 355. (1889.)

Section 4993 requires that all actions must be brought in the name
‘of the real party in interest, unless in the excepted cases named in
‘Secs. 4994 and 4995; and this applies as well to negotiable paper as
‘to choses in action, unless the indorsee or holder is protected under
‘the rules of commercial law, by which, if he be such indorsee or holder
‘before due, in good faith, and for valuable consideration, he takes the
RIGHTS OF THE HOLDER. 69

same free from all equities. Osborn v, McClelland, 43 Ohio St. 284.
(1885.)

C & Co., a partnership, engaged in private banking, gave a certifi-
cate of deposit to B. Thereafter they ceased doing a general banking
business, and were immediately succeeded by a savings bank, in-
corporated under the act of February 26, 1873, 70 O. L. 44, which con-
ducted its business in the former banking rooms of C & Co., whose
members were trustees of the bank—one its president, another its
treasurer and cashier, who had full control of its business. B pre
sented his certificate at the bank, whose cashier canceled it with a
stamp of C & Co.; filed it with their redeemed certificates; issued to
B a certificate of deposit of the bank in lieu of it, and charged the
amount of it on the books of the bank to C & Co., who had an unau-
thorized credit on the bank books (making a large credit balance in
their favor), placed there by the president and cashier without the
knowledge of the other trustees. This certificate was, from time to
time, renewed by the cashier by like certificates, until the issuing of
the one in suit. For two years prior to the issuing of the last named
certificate the managing officers of the bank had, without the knowl-
edge of the other trustees, in like manner redeemed, either by the bank’s
money or certificates, the certificates of C & Co., who were in fact in-
solvent and debtor to the bank, but in good credit. B was not a party
to, and had no knowledge of the fraud and bad faith of the officers of
the bank: Held, the bank was liable to B upon its certificate of deposit.
Bank v. Blakesley, 42 Ohio St. 645. (1885.)

The maker of a separate note, in suit, who holds an overdue joint
note made by the plaintiff and another who are both insolvent, may,
in equity, set off the joint demand. Baker vy. Kinsey, 41 Ohio St, 403.
(1884.)

The holder of a promissory note who took it after maturity holds
it subject to every objection, including equitable set-off, to which it
was subject in the hands of his assignor. Ib.

A bona fide purchaser, for value, of a non-negotiable chose in ac-
tion, from one upon whom the owner has, by assignment, conferred the
apparent absolute ownership, when the purchase is made upon the
faith of such apparent ownership, obtains a valid title as against the
real owner, who is estopped from asserting title thereto. Combes et
al. v. Chandler et al. 33 Ohio St. 178. (1877.)

Payment of a note given for articles of personal property, the note
having passed into the hands of an innocent holder for value, before
due, without notice, does not bar the right to damages for breach of
the contract of sale, in an action brought by the maker of the note,
who was the purchaser of the personal property. Creighton v. Com-
stock, 27 Ohio St. 548. (1875.)

A holder of negotiable paper, who takes it before maturity, for a
valuable consideration, in the usual course of trade, without knowl-
edge of facts which impeach its validity between antecedent parties,
70 OHIO NEGOTIABLE INSTRUMENTS.

holds it by a good title. To defeat his recovery thereon, it is not suf-
ficient to show that he took it under circumstances which ought to ex-
cite suspicion in the mind of a prudent man. To have that effect, it
must be shown that he took the paper under circumstances showing
bad faith or want of honesty on his part. Johnson v. Way, 27 Ohio
St. 374. (1875.)

Circumstances tending to show bad faith or fraud in taking nego-
tiable paper, are admissible in evidence, and the establishment of such
bad faith or fraud, whether by direct or circumstantial evidence, sub-
jects the holders of paper so taken to defenses existing between ante-
cedent parties. Ib,

To entitle a holder of negotiable paper to the benefit of the rule,
which protects such a holder from the equities of third persons, it is
not necessary that he should have paid the face of the paper. It
seems, however, that he must have paid its fair and reasonable value.
Baily v. Smith, 14 Ohio St. 396. (1863.) ~ ——

The doctrine of lis pendens does not apply to negotiable paper be-
fore due. Stone v. Elliott, 11 Ohio St. 252. (1860.)

In May, 1855, G & Co. executed to L, C & Co. the following paper:
“We have this day sold L, C & Co. one thousand kegs (25 lbs, net) of
good merchantable blasting powder, at $2.30 per keg, delivered on
board boat at Rochester. Their note at six months from shipment,
payable in New York City. Half delivered now and balance in June.
E. Gilbert & Co.” Same month G & Co. shipped five hundred kegs and
advised L, C & Co., who forthwith returned a negotiable note for con-
tract price of five hundred kegs, but the other five hundred kegs were
never shipped. In August, 1855, the note was discounted by the bank
for G & Co., one of the discount committee being aware of the terms
of the sale and of the fact that the last lot of five hundred kegs had not
been shipped. The note was not paid, and suit was brought thereon
by the bank against L, C & Co., who set up, by way of counterclaim,
damages for the non-delivery of the five hundred kegs of powder:
Held, (1) That the stipulations as to the two lots of powder are to be
treated as distinct and several agreements, and not as one entire con-
tract. (2) That a claim for damages for the non-delivery of the last
lot cannot be set up as a counterclaim to an action upon the note given
for the first lot, brought by the indorser for value and before maturity,
even though he had notice of the breach of the second contract at the
time of his purchase. Loomis v. Eagle Bank, 10 Ohio St. 327. (1859.)

Where L made his promissory note, payable on a future day to
the order of M H & Co., and, before delivery to the payees, T M, on
being applied to by L, refused to become responsible thereon as a
maker, but, for the accommodation of L, willing to become responsible
thereon as an indorser, and that only for this purpose wrote his name
on the back of the note in blank, of all which the payees had notice;
and the payees afterward transferred the note, before due, by delivery
only, to those under whom the plaintiffs claim: Held, (1) The plain-
RIGHTS OF THE HOLDER. 71

tiffs hold an equitable title only to the note, and subject to all the
equities existing between the original parties thereto. (2) By the
terms of his contract, T M assumed the obligations of an indorser only;
and the note having never been indorsed to the plaintiffs, they cannot,
om this state of facts, recover against him. Seymour v, Leyman, 10
@hio St. 283. (1859.)

When the note of a third person is transferred, bona fide, before
due, as collateral security, and for value, such as in consideration of
a ‘oan or advancement or a stipulation, express or implied, of further
time to pay a pre-existing debt, or in consideration of a change of se-
curities of a pre-existing debt or the like, the holder of such collateral
will be protected from infirmities affecting the instrument before it was
thus transferred. Roxborough v. Messick, 6 Ohio St. 448. (1856.)

When a debt is created, without any stipulation for further se-
curity, and the debtor afterward, without any obligation to do so, vol-
untarily transfers a negotiable instrument to secure the pre-existing
debt, and both parties are left in respect to the pre-existing debt in
status quo, no new consideration, stipulation for delay or credit being
given or right parted with by the creditor, he is not a holder of the
collateral, for value, in the usual course of trade, and receives it sub-
ject to all the equities existing against it at the time of the transfer. Ib.

The rule that a party to a negotiable instrument is not a compe-
tent witness to impeach the instrument, is not applicable, unless the
instrument be negotiated before it falls due. Rohrer v. Morningstar,
18 Ohio 579. (1849.)

A release of all actions and causes of action, given to the acceptor
of a bill of exchange, on a composition with creditors, does not em-
brace money afterward paid as indorser, when the bill had been ne-
gotiated before due, and, at the date of the release, was bona fide held
by a third party. Crawford v. Swearingen, 15 Ohio 264. (1846.)

A note made and indorsed for the accommodation of the maker,
to be discounted at a bank where its discount is refused, cannot be
transferred as a business note to one having knowledge of the facts,
and the amount recovered by the indorser. Stone v. Vance, 6 Ohio
246. (1833.)

Where the president of a corporation presents its notes, made pay-
able to and with the name of another corporation indorsed thereon by
one of its agents, as agent, to a bank, requesting its discount, for the
benefit of the indorsing corporation, the bank is not thereby put upon
inquiry as to the authority of such agent to indorse the note, and
should not be held to have all the information which proper inquiry
would have shown. Holmes v. Hayes, 1 O. S. C. D. 206 (32 W. L. B.
346). (1894.)

Where a note made by one corporation is, by its terms, payable to
another corporation, and an agent of the latter indorses, as agent, the
name of the payee thereon, gives the note to the president of the first
72 OHIO NEGOTIABLE INSTRUMENTS.

corporation for the purpose of having him effect a discount thereof,
such note is not, while in the hands of such president, in the hands
of the maker, Ib. /

A party by false representations as to his financial conditions in-
duced the G bank to accept his check on the M bank and to give hi
credit for the amount on its books, as a deposit, and then drew hi
check on the G bank for the amount so obtained, in favor of the
bank to whom he was indebted and who knew of his insolvency, wher?-
upon the G bank sent a new York draft for the amount to the M bank,
but ascertaining the insolvency of the party, without delay notified te
M bank of the fraud perpetrated on them and demanded the sr-
render of the draft sent, tendering back such party’s check, The /di-
rectors of the M bank had already adopted a resolution directing their
cashier to place the amount of the draft to the credit of such party,
put the draft was still in the envelope and no entry was made thereof
to the credit of such party until the next day after receiving such no-
tice: Held, the bank should have complied with the demand of the
G bank, and having failed to do so, judgment for the amount of the
draft is rendered against it. The Gibsonburg Banking Co. v. The
Wakeman Banking Co. 20 0. C. C. 591. (1900.)

In an action by an endorsee upon a negotiable note, obtained be-
fore due, against the maker, an answer averring only that the note
had been paid and taken up and then lost or stolen is demurrable, it
being essential to a good‘defense to aver also that the endorsee had
knowledge of the facts thus pleaded, or that he gave no value. Allen
vy. Johnson, 11 Cire, Dec. 42 (20 R. 8). (1900.)

One having knowledge of an entire failure of consideration, though
purchasing before maturity, is not an innocent holder and cannot re-
cover. Suhr v. Hoover, 8 Cire. Dec. 738 (15 R. 690). (1896.)

One having notice, though he acquire the notes before maturity, is
not an innocent holder and cannot enforce payment. Ib.

A bona fide indorsee of a negotiable promissory note, upon giving
due notice of dishonor, is entitled to recover the full amount of the
note from the indorser regardless of the amount such indorsee may
have actually paid for such note. Mackey v. Burwell, 2 Circ. Dec.
588 (4 R. 348). (1890.)

Notes void between the original parties, but good in the hands of
pledgees, may, under the bankrupt act of March 2, 1867, be proved by
the pledgees against the bankrupt’s estate for their full amount and
they can recover dividends to the full amount of their advances on
such notes. Bailey v. Nichols, 11 0. F. D. 210. (1869.)

A bank being the bona fide holder of a note is not affected by the
fact that at the time it was discounted by it, it knew that the maker
of the note was only an accommodation maker and signed without con-
sideration in order that the indorser, who was the principal debtor,
might get the note discounted. Armstrong v. Scott, 6 O. F. D, 211.
1888.)
RIGHTS OF THE HOLDER, 73.

The fact that a draft is payable to the order of a bank is not
notice to the bank that the holder is not its purchaser or remitter so.
as to prevent it from being a bona fide holder. Armstrong v. Bank, 6
O. F. D. 509. (1890.)

A bank to whose credit moneys were stated to be deposited to the
use of a person by a letter of credit written by another bank by re-
ceiving the letter of credit and applying the amount therein named to
the use of the person directed therein become an innocent purchaser
for value of the letter of credit, and the bank writing it became in-
debted for its amount to the bank receiving it. Ib,

Where a note is left with an Ohio bank as collateral security and
is for such bank discounted by a New York bank, under a guaranty
of payment, any defense to such note which was open to the maker
when it was held by the Ohio bank is equally open to him after trans-
fer to the New York bank. Lanier v, Nash, 5 O. F. D. 628. (1887.)

The violation of an agreement between a railroad company and
the makers of a note for its accommodation as to the manner in which
the proceeds of such note was to be expended by the railroad company,
without the knowledge of or participation in such violation, by the
bank discounting the note, does not affect the right of the bank to re-
cover on the note. Waynesville Nat, Bank vy. Irons, 5 O. F. D. 15.
(1887.)

If the president of the bank which discounted the note for a rail-
way company, of which he was also president, took any active part in
sucb discount transaction, the bank is chargeable with such knowledge
as the president had; but if the president declined to act in such trans-
action the bank is not chargeable with such knowledge. Waynesville
Nat. Bank v. Irons, 5 O. F. D. 15. 1881.)

Parties who are bona fide indorsees before maturity of paper is-
sued by a bank are not affected by the question whether the paper has
or has not been authorized by the discounting committee of the bank.
Blair v. Bank, 4 O, F. D. 476. (1877.)

A bona fide holder of a negotiable note, indorsed before maturity,
holds it free of any claim by the maker against the payee. If in-
dorsed after maturity, the indorsee takes it at his risk. Fossitt v.
Bell, 2 O. F. D, 563. (1848.)

Where a note is indorsed before due, either in payment of a pre-
existing debt or for a good consideration without notice of any fraud
in its origin, the maker cannot set up fraud in its origin against the
indorsee. Slacom y. Wishart, 2 O. F. D. 331. (1844.)

A note received in payment of a debt is a transaction in the ordi-
nary course of business. Riley v. Anderson, 2 O. F. D. 134. (1841.)

The purchase of a note not due for a proper consideration would
be in the usual course of trade. Wilhelm v. Snowden, Ohio Dec.
(Dayt.) 435. (1869.)

4
74 OHIO NEGOTIABLE INSTRUMENTS.

A bona fide purchaser for value before due in the usual course of
business will be protected unless the consideration paid by him was
grossly inadequate. Ib.

If the plaintiff received the note in the usual course of trade and
for a fair and reasonable consideration, still the defendant may show
that plaintiff had notice of the fraud by which his indorsement was
procured and defeat a recovery. Ib.

To defeat a recovery against an indorser it is sufficient to show
that the plaintiff purchased under circumstances which should have
put a person of ordinary prudence and judgment upon injury. Ib.

Where promissory notes are procured by fraud and without con-
sideration and are sold before maturity for one-half of their face
value, such consideration is so grossly inadequate as to be in effect
notice to the purchaser, and if he has been wilfully ignorant of the
fact, he cannot be considered an innocent purchaser. Boyd v. Cramer,
Ohio Dec. (Dayt.) 42. (1869.)

As the bank can safely purchase a draft only from the payee or
its authorized agent, it is its duty to ascertain the nature and char-
acter of the payee and the relations to it of the person presenting the
draft. A representation that the party presenting the draft that he is
the payee or the sole owner of the draft will not protect the bank
against the claim of the receiver of the real owner. Merrick v. Bank,
11 Dec. 298. (1900.)

A bona fide holder of one of the notes secured by a mortgage is
entitled to payment and the benefit of the mortgage though the mort-
gagee, by forgery, has attempted to convey all of such notes and the
mortgages to other parties. Martin v. Martin, 5 Dec. 394. (1885.)

If plaintiff becomes possessed of a certificate of deposit as in-
dorsee, under circumstances sufficient to put him on inquiry, the same
defenses can be made to it as if it were in the hands of the original
holder. Cuyahoga Steam Furnace Co. v, Lewis, 4 Re. 17. (1853.)

3172y (4950) [When Person Not Deemed Holder in Due
Course.] Where an instrument payable on demand is nego-
tiated an unreasonable length of time after its issue, the holder
is not deemed a holder in due course.

T, a purchaser of land at a sale in partition, executed a mortgage
to secure the purchase money; after execution of such mortgage, but
before the same was filed for record, entered into a contract, in writing
for the sale of land to W, who at the time of entering into such con-
tract, had no notice of the mortgage. Before anything had been done
between T and W toward the execution of the contract of sale, the
mortgage was duly filed for record. After filing of such mortgage for
record, W proceeds to the execution of his contract of purchase, by re-
ceiving from T a conveyance, taking possession of the premises, pay-
ing a part of the purchase money and giving his two notes, without
RIGHTS OF THE HOLDER. 15

indorsement, delivered each of said notes to a different third person,
as collateral securities, dies insolvent: Held, that, in a proceeding
against W, to enforce the mortgage lien, and all parties in interest
being before the court, W is entitled to enjoin the collection of so much
of the note last falling due as may be necessary to cover the mortgage
incumbrance. Kyle v. Thompson’s Admr, 11 Ohio St. 616. (1860.)

The taking of a promissory note by the merchant from the com-
pany for the aggregate amount of orders given by a company for wages
earned by operatives, without intending thereby to waive his right to
the “statutory lien” or preference of the operatives, will not be deemed
a waiver of his right to priority of payment. Minor Fire Clay Co. In
Re, 9 Dec. 627 (7 N. P. 557). (1900.)

81722 (4951) [Notice Before Full Amount Paid.] Where
the transferee receives notice of any infirmity in the instru-
ment or defect in the title of the person negotiating the same
before he has paid the full amount agreed to be paid therefor,
he will be deemed a holder in due course only to the extent of
the amount theretofore paid by him.

3173 (4952) [When Title Defective.] The title of a per-
son who negotiates an instrument is defective within the mean-
ing of this chapter when he obtained the instrument, or any
signature thereto, by fraud, duress, or force and fear, or other
unlawful means, or for an illegal consideration, or when he
negotiates it in breach of faith, or under such circumstances
as amount to a fraud.

An administrator has no power to bind the estate of his intestate
by a negotiable note given by him as administrator. Curtis v, Bank,
39 Ohio St. 579. 1883.)

Quaere: What relation does a stranger to the original note sus-
tain by signing the note underneath the signature of the original
maker. Is he maker, surety or guarantor of payment? Smucker v.
Wright, 2 Circ. Dec. 360 (3 R. 620). (1889.)

An action against D G, upon a promissory note signed “W & D
G,” cannot be maintained unless D G authorized the signing of the
note in that way, or that a partnership existed for the purpose for
which the note was given, of which he was a member. Pease v. Garst,
Ohio Dec. (Dayt.) 289. (1872.)

A note signed by the individual names only of the members of a
firm is prima facie an individual note, but if given for a firm liability
the holder may enforce his equitable liens for its payment against the
firm. Magruder v. McCandlis, 3 Re. 269. (1860.)
76 OHIO NEGOTIABLE INSTRUMENTS,

TITLE IN GENERAL,

Where there is an equity directly attaching to the bill or note
itself, in the nature of a claim of right or title to the instrument, such
equity may be asserted by a third party, not a party to the instrument,
against an indorsee after maturity. Kernohan v. Durham, 48 Ohio St.
1. (1891.)

The payee of a note secured by mortgage, being indebted to K, as
collateral security, assigned and transferred to him before the ma-
turity of the note, the mortgage and what purported to be the note,
but which proved to be a forgery of the note. The note was indorsed
by the payee in blank, and the assignment on the mortgage was as
follows: “For value received, I assign and transfer the within mort-
gage and the note secured thereby to K, his representative and as-
signs.” Afterwards, the payee, being indebted to C also, as collateral
security, indorsed and delivered to him the genuine note, after ma-
turity, promising to deliver to him the mortgage, C received the note,
relying upon such promise, without any knowledge or information, at
the time, as to the previous assignment of the mortgage to K: Held,
(1) That C, as a transferee of the genuine note after maturity, took
no better right or title to it, than the payee had, from whom he received
it. (2) That in a proceeding to foreclose the mortgage, the lien of
K was paramount to that of C; and that K was entitled to be paid
before C, out of the proceeds of the sale of the mortgaged premises.
(3) That K was entitled to the genuine note, and to hold it free from
the deduction of any payments thereon made by the maker, who neg-
lected to have the amounts so paid by him, noted or indorsed on the
instrument. Ib.

O, for value received, made and delivered to F, her negotiable
note, payable to the order of F in five years, secured by mortgage.
Two years before the same became due, F, without consideration, and
solely for the accommodation of B & §, bankers, loaned the same tem-
porarily to them, to enable them to use the same as collaterals for a
loan to meet a present emergency, B & § promising to safely keep and
return them. B & § did not use them, but they were suffered to re-
main in their custody until after the note became due, when §, sur-
vivor of B & S, without the knowledge of F, or without authority from
her, hypothecated them to M by delivery, merely saying the note would
be paid. M took the same in good faith and for full value, but without
inquiry, guaranty, or indorsement by §S, relying solely on his posses-
sion and the blank indorsement of F that S was the owner: Held, that
M having acquired the note after due and without inquiry acquired no
better title than S had, and as § had neither title nor interest which
was good against F, he transferred none to M, that in equity gave him
the right to foreclose the mortgage as against the real owner. Osborn
v. McClelland, 43 Ohio St. 284. (1885.) Neither is F estopped by her
acts from asserting her ownership. Combes vy. Chandler, 33 Ohio St.
178, distinguished. Osborn v. McClelland, 43 Ohio St. 284. (1885.)
RIGHTS OF THE HOLDER. 17

Where the purchaser of a note receives it in part payment of
property sold, his title to the note is not affected by the fact that he
retains the title and possession of the property sold as security for
the unpaid purchase money. Rooker v, Rooker, 29 Ohio St. 1. (1875.)

NOTES OR SIGNATURES OBTAINED BY FRAUD—FORGERY.

Where the act of a partner is within the scope of the partnership,
a declaration made by him at the time of the transaction is competent
to show that the act was done in behalf of the partnership; and if the
credit was obtained on the faith of such declaration, the falsity of the
representation is not material. Benninger v, Hess, 41 Ohio St. 64.
(1884.)

The surrender of a promissory note to the maker, upon receiving
in payment thereof a new note, the signatures to which were supposed
to be genuine by the payee, but one or more of which were forged, does
not operate as payment of the original note, nor extinguish the right
of action thereon. Emerine v. O’Brien, 36 Ohio St. 491. (1881.)

E, the owner of a promissory note, executed by M, as principal
maker, and O, as surety, agreed with M that he would accept his note
with F and V as sureties thereon, in payment of the note of M and
©. Whereupon, M delivered to E a promissory note, executed by him-
self, and purporting to be executed by F and V as sureties, but whose
signatures M had forged to the note. E received the forged note be-
lieving it to be genuine, and delivered to O the origina} note, which
was destroyed: Held, that said new note did not operate as payment
of the original note, nor relieve O from liability thereon. Ib.

B makes and delivers his non-negotiable promissory note to C,
from whom they are obtained by fraud, misrepresentation, and with-
out adequate consideration. The assignee, having thus obtained them,
transfers them to W, who is a bona fide purchaser, for value, before
due, without notice: Held, C cannot reclaim the notes from W.
Combes v. Chandler, 33 Ohio St, 178. (1877.)

In an action by an indorsee against the maker of a promissory
note, the defendant, by his answer, as a first ground of defense, denied
the making of the note; and as a second ground of defense, alleged
that if the signature to the note was genuine it was obtained by a
“cunningly devised scheme,” or trick, and that there was no valid con-
sideration for the note, of which facts the indorsee had full knowl-
edge when he took the note: Held, that the defendant had a right to
insist upon both these grounds of defense, and that it was error in the
court to rule him to elect on which grounds he would rely. Citizens’
Bank v. Closson, 29 Ohio St. 78. (1875.)

Where a person, with knowledge that he had been induced to sign
the promissory note, on which suit had been brought, as surety,
through the agency of the principal maker and payee, by fraudulent
representations that would have been for him a valid defense in the
suit thereon, after the note had matured, with a full knowledge of the
718 OHIO NEGOTIABLE INSTRUMENTS.

facts constituting the fraud, but ignorant that the fraud was a defense
in law, voluntarily requested the payee to extend the time of payment
of the note, which was done, and upon that consideration promised to
pay: Held, he thereby waived his defense to the note. Rindskopf v.
Doman, 28 Ohio St. 516. (1876.) In an action on such note, a parol
waiver of such defense by the surety, voluntarily made upon a sufficient
consideration, upon a full knowledge of all the facts, is binding. Ib.

Where the payee of a promissory note is induced, by the fraud of
the maker, to accept a partial payment of the amount due, and a new
note of the maker for the remainder, in full satisfaction of the old
note, upon discovery of the fraud the payee may maintain his action
on the old note, without first offering to return the money so paid, or
the new note, provided he has the new note in court ready to be de-
livered up or canceled at the trial of the cause. Miller v. Woods, 21
Ohio St. 485. (1871.)

M, for the purpose of defrauding the general government out of
its revenues, assumed the name of C, and in that name purchased goods
of W D &Co., in Canada, on credit, and smuggled them into the United
States at Detroit. From Detroit he shipped them to C H & Co., at Cin-
cinnati, to be sold on commission; at the same time advising C H &
Co, by letter, postmarked at Detroit, signed C, and requesting them to
remit the proceeds. C H & Co. having sold the goods, purchased a bill
of exchange from the defendants, bankers at Cincinnati, on their cor-
respondent at New York, for the net amount of the proceeds of the
goods, and having endorsed it, payable to “C, or order,” remitted the
bill by mail to Detroit, addressed to C, where M received it, and hav-
ing indorsed it in blank, thus:—C, delivered it to W D & Co., in pay-
ment for the goods, from whom the plaintiff received it in good faith,
for full value and before dishonor. Afterwards C H & Co., under the
revenue laws of the United States, were compelled to pay to the gen-
eral government the full value of the smuggled goods; and at their
instance, the bill was dishonored when presented to the drawee for
payment. Neither W D & Co. nor C H & Co, had any knowledge of M,
other than in the above transaction, nor that his name of C was as-
sumed, nor of his fraudulent practices against the general govern-
ment. C H & Co.,, in their correspondence, supposed that C was the
true name of their correspondent. W D & Co., at the time they re
ceived the bill, had no knowledge of the correspondence between C H
& Co, and M. In a suit on this bill by the holders against the drawers:
Held, that the defendants are estopped from denying that the legal
title to the bill of exchange is in the plaintiffs, and from setting up as
a defense against the plaintiffs, the fraud practiced by M upon C H &
C. Forbes v. Espy, 21 Ohio St. 474. (1871.)

A debtor of the plaintiff enclosed and mailed to her a draft on a
bank in New York payable to her order. The draft was stolen from the
mail, and the thief, having placed a forged indorsement of the plain-
tiff’s name thereon, sold the same to the defendant, who drew from
RIGHTS OF THE HOLDER, 79

the bank the money and appropriated to his own use: Held, on this
state of facts the plaintiff was entitled to recover the amount of the
draft from the defendant. Shaffer v. McKee, 19 Ohio St. 526. (1869.)

The transfer of a negotiable promissory note, secured by mort-
gage on real estate, to a bona fide indorsee, does not entitle the holder
to foreclose the mortgage, when it appears that both note and mort-
gage were obtained by fraud. Baily v. Smith, 14 Ohio St. 396. (1863.)

The obligor of a bond cannot avoid his liability by showing that
his signature to the bond was procured by the fraud of one of his co-
obligors, without any participation on the part of the obligee. Bigelow
v. Comegys, 5 Ohio St. 256. (1855.) :

If with the knowledge or assent of the creditor, any material
part of the transaction between the creditor and principal debtor be
misrepresented to the surety, the misrepresentation being such that,
but for the same having taken place, the suretyship would not have
been entered into, the security so given is voidable at law, on the
ground of fraud. Selser v. Brock, 3 Ohio St. 302. (1854.)

Where one of two innocent persons must suffer by the fraud of a
third person, he who first trusted such third person, and placed in his
hands the means which enabled him to commit the wrong, must bear
the loss. Ib. But where a fraud is practiced by a principal debtor in
procuring a surety to sign a note without the knowledge of the
creditor, the obligation of the surety is valid and binding. Ib.

A special action on the case may be sustained against the debtor,
for fraudulently representing himself insolvent, and thereby inducing
his creditor to discharge a promissory note for less than its value.
Edwards v. Owen, 15 Ohio 500. (1846.)

A bill of exchange received in good faith, for a valuable considera-
tion, without notice of fraud, may be recovered by the holder. Gano
v. Samuel, 14 Ohio 593. (1846.)

Plea to an action on a sealed note, that it was obtained by fraud,
covin and misrepresentation. Good on demurrer. Saunders vy. Stotts,
6 Ohio 380. (1834.)

Fraud may be specially pleaded in bar, even where it might be
given in evidence on the general issue. Ib.

Payment of a note cannot be avoided in a suit at law by way of
defense, upon the ground of fraud, unless the fraud goes to the whole
consideration. Harlan v. Read, 3 Ohio 285. (1827.)

Where a note on a third person has been fraudulently obtained
possession of, the indorsement forged, and the person claiming under
the forged indorsement has left it in the hands of attorneys to collect,
chancery will order the note delivered up in courts and the promisor
to pay it to the complainant. Kibby v. Kibby, Wright 608. (1834.)

If a note was obtained by fraud, or given for a consideration,
which has failed, or by mistake, the defense may be made in a suit be-
tween the parties. Loffland v. Russell, Wright 438. (1833.)
80 OHIO NEGOTIABLE INSTRUMENTS.

It is a good defense to a note in a suit between parties to it, that
it was obtained by fraud or for a consideration which has failed. Fallis
v. Griffith, Wright 303. (1833.)

Where an insolvent debtor in settling with his creditors at a re-
duced per cent. secretly gives his note to one of them so as to make
full payment of such creditor’s claim, the note being given in fraud of
the other creditors, is utterly void from the beginning. Fenner v.
Dickey, 3 O. F. D. 655. (1861.)

Fraud may be set up by the maker as a defense against the payee
of a note. Slacom v. Wishart, 2 O. F. D. 331. (1844.)

Where notes given for the purchase money of land are negotiable
and outstanding, chancery may interpose if the vendor of the land had
no title or defective title, and may order the notes delivered up and
canceled. McKay v. Carrington, 1 O. F. D. 287. (1829.)

Where one of two cosureties upon a note which has been twice
renewed by his cosurety, is by fraud and deception of the principal
led to understand that the other cosurety also is to again become co-
‘surety and signs a note which is made payable to the other cosurety,
who advances the money to pay the note formerly renewed, such rela-
tion of cosuretyship between them will not be thereby changed, unless
such change be made with his knowledge and consent, and the same
will not be inferred from the order in which the names appear on the
former notes. Yount v. Groff, Ohio Dec. (Dayt.) 446. (1866.)

ILLEGAL CONSIDERATION.

The maker, when sued upon a note, may, as a defense, show that
it is founded upon an illegal agreement, although it appears that he is
‘in pari delicto where the suit is by a party to the agreement, or by
one having acquired his title with notice. Jacobs v. Mitchell, 46 Ohio
St, 601. (1889.)

The indorsee of a check given for money lost at a game of cards
cannot recover upon it against the drawer, though a bona fide holder
for value without notice of the vice in the consideration. A check so
drawn is within the provisions of Sec. 4269, Rev. Stat., and ‘absolutely
void and of no effect.” Bank v. Portner, 46 Ohio St. 381. (1889.)

In an action to foreclose a mortgage, the defense was set up, that
the mortgage was given to secure double the amount of the money
loaned thereon by the mortgagee: Held, (1) That the consideration
of said mortgage being entire and illegal, a court of equity will not aid
‘its foreclosure. (2) That the defense of illegality of consideration in
‘such case, may be made by the mortgagor or by any person succeeding
to his interest; hence, it is error for the court to exclude testimony of-
fered by the defendant to establish such defense. McQuade v. Rose-
crans, 36 Ohio St. 442. (1881.)

In an action on a promissory note, the maker is not estopped from
setting up want of consideration or fraud, by a judgment dismissing
RIGHTS OF THE HOLDER, 81

his petition on the merits, in an action brought to enjoin the negotia-
tion of the note and to obtain its surrender and cancellation, although
the matter set up as a defense was relied on as the ground of relief in
the petition. Cramer v. Moore, 36 Ohio St. 347. (1881.)

The transaction was a bet or wager. The wager was, in fact, the
hogs or the price of them, on the part of Harper, and an amount equal
to their price or value on the part of Lucas. Such a bet or wager is
illegal. S. & C. 446. Lucas v. Harper, 24 Ohio St. 328. (1873.)

A wager is, in effect, defined to be a pledge or bet. Webster’s Dic.;
3 Blackstone, 339, 341, 342; 2 Bouv. Dic. 631; 2 Blackstone, 157; 1
Bouv. Inst., Secs, 1264-1267. Ib.

Wagers, etc., on an election are void as against public policy. 1
Story on Contracts, Sec. 567 and note 7; 2 Parsons on Contracts, 756,
note M.; Story on Sales, 496 et seg. and note; Chitty on Bills, 83, side
page; 4 Abbott’s Nat. Dig. 346, and authorities cited. Ib.

If a promissory note be given in settlement of an account, of
which some of the items are for intoxicating liquors sold by the payee
to the maker, to be drunk on the premises where sold, in violation of
the statute in such case made and provided, the consideration of such
note is partly illegal; and the whole note is therefore void. Widoe v.
Webb, 20 Ohio St. 431. (1870.)

Where the whole or a part of the consideration of a bill of ex-
change is illegal, the whole bill is void. Doty v. Knox County Bank,
16 Ohio St. 183. (1865.)

The act of 1854, prohibiting, while in force, the circulation of
foreign bank bills of a denomination less than ten dollars, rendered
void only such contracts as were given for, or related directly to, such
bank bills; therefore, where a bill of exchange was given in renewal
of several others, all of which were valid, except one that was ren-
dered void by said act, such renewed bill was void to the extent only
of the invalid consideration, and good as to the balance. Ib.

By the laws of Kentucky, a person who is held and treated as as a
slave has no capacity to make any contract whatever; and promissory
notes given to his master by himself and sureties for him in the pur-
chase of his freedom are illegal and void, as to both principal and
sureties. Anderson v. Poindexter, 6 Ohio St. 622. (1856.)

Where a person has been induced by threats of a groundless prose-
cution to execute a note and mortgage, a court of chancery will grant
relief and restrain their collection. James v. Roberts, 18 Ohio 548.
(1849.)

A party to a negotiable paper cannot be a witness to invalidate it,
by showing that it was founded on an illegal consideration. Treon
vy, Brown, 14 Ohio 482. (1846.)

A mortgagor may redeem, notwithstanding the consideration of
the note to secure the payment of which the mortgage was executed
82 OHIO NEGOTIABLE INSTRUMENTS.

was illegal or contrary to the policy of the law. Cowles v. Raguet, 14
Ohio 38. (1846.)

Note given to suppress a prosecution for embezzlement is voidable.
Tracy v. Deatrick, 6 Circ. Dec, 427 (10 R. 111). (1895.)

GAMBLING—BOHEMIAN OAT NOTES.

The consideration of notes given in settlement of a guaranty of the

collectibility of certain Bohemian oat and Red Line wheat notes sold
‘to a purchaser who is aware of their consideration, but not a party to

the fraudulent scheme represented thereby, is not illegal and the notes
are collectible at law, notwithstanding the return of the fraudulent
notes with the guaranty, because the guaranty, and not the notes, con-
stituted the basis of contract. Taylor v. Courtright, 1 0. S, C. D. 390
(34 Bull. 317). (1895.)

Evidence of a paid agreement made at the execution of a Bohemian
oat note, as to the consideration of the note, how it was to be paid and
what was to be done with the note before it became due, is not compe-
tent. Cummings v. Ritter, 1 0.8. C. D. 290 (33 Bull. 202). (1895.)

A promissory note for money furnished for gambling purposes is
void, whether the money was lost at the time of giving the note or not,
Corre v. Rogers, 9 Circ. Dec. 854. (1896.)

A note given by an agent to his principal for money furnished by
the latter for a wheat gambling transaction, in which the parties were
engaged and which is still in progress, cannot be enforced. Rogers v.
Corre, 6 Cire. Dec. 602 (10 R. 346). (1895.)

A “Bohemian oat note” is not a note given in a gambling transac-
tion and is not void. Stewart v. Simpson, 1 Circ, Dec, 562 (2 R. 415).
(1887.)

NOTES TAKEN FOR ACCOUNTS,

The giving of an order, check, or other instrument is not absolute
payment unless it is shown that it was understood and agreed by the
parties to be accepted as absolute payment and satisfaction of the
amount, and the burden is upon the person claiming payment to show
these facts. J. Weller Co. v. Washington Gordon & Co. 14 Circ. Dec.
407. (1903.)

Taking notes in settlement of an account after the latter becomes
due does not defeat the right to rescind the sale and replevin the goods
on the ground that they were obtained upon false representations,
where vendor, when the notes were taken, had no knowledge of the
fact, and tendered the notes before bringing the replevin suit. Galli-
polis Furniture Co, v. Symmes, 10 Circ. Dec. 524 (19 R. 659). (1900.)

The giving of notes by defendants in settlement of an account
without intent to defraud, although knowing themselves to be in-
solvent, is not fraud in law, where there was no concealment of the in-
solvency, but simply a failure to disclose it, unless the insolvency was
RIGHTS OF THE HOLDER. 83

so gross as to lead to the presumption of an intent not to pay. Hender-
son Litho. Co, v. Belford, 10 Dec. 640. (1890.)

The fact that plaintiffs were induced to accept notes in settlement
of an account against defendants upon receipt of a letter representing
that there was about to be an increase of capital stock, when there was
neither intention or expectation of increasing such stock, justifies plain-
tiff in disregarding the notes and suing on the original account. Ib.

Where an account was due for which notes were given to extend
the time of payment, and the holder was induced to accept such notes
by false representation, or fraudulent concealment by the defendant,
the plaintiff had a right at once to sue upon the original account. Ib.

Where in an action upon promissory notes the defendant in his
answer alleged that he was induced, through fraud and misrepresenta-
tion, to deliver the notes, although the answer was sufficient, as it con-
tained no averment of a reconveyance of the land to the plaintiff, or of
an offer to reconvey, it was notice that the defendant would seek to
recover for the fraud; and though not in the form of a counterclaim,
was substantially such. La Dow v. Ball, Ohio Dec. (Dayt.) 225.
(1872.)

3173a (4953) [What Constitutes Notice of Defect.] To
constitute notice of an infirmity in the instrument or defect in
the title of the person negotiating the same, the person to whom
it is negotiated must have had actual knowledge of the infirmity
or defect, or knowledge of such facts that his action in taking

the instrument amounted to bad faith.

The doctrine of lis pendens does not apply to negotiable paper,
transferred before due, in due course of business for value. P. C. C. &
St. L. Ry. Co, v. Lynde et al. 55 Ohio St. 28. (1896.)

In an action on a negotiable promissory note, when it appears that
the plaintiff is a purchaser before due for value in the usual course of
trade, it is not sufficient as a defense to show he took the note under
circumstances that ought to have excited suspicion in the mind of a
prudent and reasonable man. To constitute a defense the proof must
show that, in purchasing the note, he acted in bad faith, or with a
want of honesty. Johnson v. Way, 27 Ohio St. 374, approved and fol-
lowed. Kitchen v. Loudenback, 48 Ohio St. 177. (1891.)

Payment by the maker to the bearer of a note will not avail as
against the owner, where upon the facts of which the maker had no-
tice, the bearer had no right to receive payment, although the note was
drawn payable to bearer. Chappelear v. Martin, 45 Ohio St, 126.
(1887.)

Where a note was taken by a wife payable to herself or bearer,
with the design that in case of her death, it might be collected by her
husband without the expense of administration, the fact that after her
death it was presented by him to the maker, who paid it, supposing
84 OHIO NEGOTIABLE INSTRUMENTS.

that the husband, by reason of the intention of the wife at the time
the note was executed, was entitled to receive payment, will not con-
stitute a defense as against the administrator of the wife’s estate. Ib.

In a commercial partnership, each partner has the right to borrow

“money and give notes for partnership purposes in the firm name, and
thereby bind all the partners, notwithstanding a private arrangement
among themselves to the contrary, if such arrangement be not known
to those giving the credit. Benninger v. Hess, 41 Ohio St. 64. (1884.)

B, such a partner, with authority to borrow money in the firm
name, representing that he wished to borrow money for the use of the
partnership, effected a loan on the strength of such representation, and
in two days after receiving the money brought to the lender a note
therefor, payable to the order of the lender, signed by the partner in
his individual capacity, and indorsed by him in the name of his firm:
Held, that the note not having been delivered until after the transac-
tion the form of the note was only a circumstance for the consideration
of the jury in connection with what was said and done at the time of
the transaction, in determining whether at the time of advancing the
loan, the lender had notice that the partner borrowed the money for
his own private use. Ib.

W R, guardian of the estate of three minors, upon a sale of their
real estate, took the notes of the purchaser, drawing interest, for the
deferred payments, payable to the order of said W R, guardian of A K,
C K and E K, and secured by a mortgage on the real estate sold: Held,
that one who buys such notes bearing on their face the marks of a trust
fund, is put upon inquiry; and if he buys them from the guardian, un-
der circumstances fairly indicating that they were sold against the in-
terest of his wards, he gets no title from the guardian who misappro-
priates the proceeds of the sale. Strong v. Strauss, 40 Ohio St. 87.
(1883.)

L & Co, made an assignment for the benefit of creditors, under the
insolvent laws of Ohio, on September 26, 1874. On September 29, 1874,
L & Co. gave their check on the First National Bank of Ravenna to
H and §, and dated it back to September 22. On September 29, the
bank paid the check with knowledge of the assignment of L & Co., but
without knowledge that the check had been dated back: Held, in an
action by the assignee of L & Co., to recover moneys on deposit with
the bank at the date of the assignment, the knowledge of the bank, that
L & Co. had made an assignment, prior to the presentation of the
check, put it upon inquiry as to whether or not the check had in fact
been given before the assignment. And such payment of the check
would not be a defense for the bank. Chaffee v. Bank, 40 Ohio St. 1.
(1883.)

A negotiable instrument, before maturity, is subject to garnish-
ment in the hands of defendant, and, as against him and those claiming
through him, with actual notice of the proceedings in attachment, the
right of the plaintiff in attachment is paramount, but such right is lia-
'

RIGHTS OF THE HOLDER. 85

ble to be defeated by one who before due, without such notice, becomes
the bona fide holder. ‘The pendency of the proceedings, without actual
notice thereof, will not defeat such holder. Secor v, Witter, 39 Ohio
St. 218. (1883.)

If a letter of credit provides that drafts drawn under its authority
shall be used only for the purpose of being discounted at a particular
bank, persons taking such drafts, with notice that they have been of-
fered to the bank for discount and refused, cannot recover thereon.
Sherwin v, Brigham, 39 Ohio St, 137. (1883.)

Where, in an action by an indorsee of a negotiable promissory
note, which, in the hands of the payee, was void for want of consid- ©
eration, defense is interposed that the plaintiff is not an innocent
holder for value, the amount paid by the plaintiff for the note is only
important as it affects the good faith of the purchase. Tod v. Wick
Bros. 36 Ohio St. 370. (1881.)

The maker of a note by fraud procures an accommodation indorse-
ment upon it, transferring it, before due, to a creditor, in payment of
a pre-existing debt, the creditor giving ,time and surrendering collat-
erals. Unless complicity in the fraud, or knowledge of it at the time
of taking the note, is proven against the creditor, the paper in his
hands cannot be impeached. Kingsland v. Pryor, 33 Ohio St. 19.
(1877.)

To defeat the title of an innocent purchaser to a note, on the
ground of inadequacy of the price paid for it, the inadequacy must be
such, under the circumstances, as to impeach the good faith of the
purchase. Rooker v. Rooker, 29 Ohio St. 1. (1875.)

The purchaser of a promissory note without indorsement or other
guaranty of payment, but with notice that it was given for a patent
right, is not thereby, as a matter of law, charged with notice that it
was obtained by fraud or without consideration. Sackett v. Kellar,
22 Ohio St. 554. (1872.)

The holder of negotiable promissory notes, purchased before ma-
turity, and for value, but with notice that they had been obtained from
the maker by fraud and without consideration, cannot, by way of es-
toppel, prevent the maker from setting up such defenses as against
him, by showing that the maker, before the purchase, had informed
him that the notes were all right, and would be paid at maturity, if it
appear that, at the time such declarations were made, the maker was
ignorant of such fraud and want of consideration, and that the holder
at the time believed him ignorant thereof, unless he also show that he
informed the maker of the facts which had previously come to his
knowledge affecting the validity of the notes. Ib.

The fact that the bank held the note of the party making the de-
posit, then overdue, did not constitute a notice that the fund was to be
applied on such note, Weirick vy. Mahoning Bank,.16 Ohio St. 296.
(1865.)
86 OHIO NEGOTIABLE INSTRUMENTS.

The sending by a party, before purchasing a negotiable note, to the
makers for information respecting its validity does not authorize the
declarations given in response to such inquiry, but not communicated
to the purchaser, to be given in evidence to charge him with notice
that the note was without consideration or obtained by fraud. Bassett
v, Avery, 15 Ohio St. 299. (1864.)

The answer alleged that the bill was made payable at New York
as a mere device on the part of the cashier to secure the bank a greater
profit than could be realized if it had been made payable at the place
where discounted, the cashier at the time well knowing, and having
good reason to believe, that the parties thereto would not be prepared,
and did not intend, to pay the same at the place therein named, thereby
securing to said bank, in excess of lawful interest, the premium of ex-
change, equal to three per cent., but did not allege any notice, actual
or constructive, to such indorsee of the above circumstances. Upon de-
murrer to answer: Held, that the answer does not contain facts suffi-
cient to constitute a defense to the action. Pickaway Bank v. Prather,

12 Ohio St. 497. (1861.)

‘ The answer, in avoidance of the statutory damages upon protested
bills of exchange, alleged that at the time said bill was discounted it
was not intended by the cashier and P, who negotiated the loan, that
the bill should be paid by L, upon whom it was drawn, but failed to
aver or show that the indorsee, when he acquired the bill, had any
notice, actual or constructive, of this intention or secret understanding
of the parties to said bill. On demurrer: Held, that the answer does
not contain facts sufficient to constitute a defense to such statutory
damages. Ib.

Whatever may be the rule where no fraud is shown to have been
perpetrated on the maker by the original holder, in transferring the
note, in a case which shows that the transfer on the part of the first
holder was a positive fraud, it lies on the party claiming under such
transaction to show that he acted honestly, without knowledge of the
fraud. McKesson v, Stanberry, 3 Ohio St, 156. (1853.)

Notice of defense to a negotiable instrument does not affect an
indorsee in no way responsible for the wrong in obtaining or putting
the instrument in circulation, and whose title is derived from a party
who held it discharged of such infirmity. Bassett v. Avery, 15 Ohio
St. 299. (1864.)

Inadequacy of price is but a circumstance of fraud, and opposed
by the declarations of the vendor, will not be regarded. Woodruff
wv. Hargrave, Wright 556. (1834.) :

A corporation is chargeable with knowledge obtained by its
‘treasurer while acting as an agent for and in behalf of such cor-
poration as to indorsements of promissory notes by agents of such
RIGHTS OF THE HOLDER. 87

corporation for the accommodation of another corporation. Holmes v.
Hayes, 1 0. 8. C. D. 206 (32 Bull, 346). (1894.)

A purchaser before maturity cannot recover if he knew at the
time of purchase that the note had been obtained of the maker by
fraud. Suhr v, Hoover, 8 Circ, Dec, 738 (15 R. 690). (1896.)

The fact that a note was signed in blank with the sum in figures
marked at-the top is not enough to put a person on inquiry as to
whether the note was fraudulently issued or not. Riley v. Anderson,
20. F. D, 134. (1841.)

Upon the trial of issues touching the good faith of the holder of
a note which is invalid between the original parties, evidence of his
knowledge of the consideration, to be competent must tend to show
that he had such knowledge at the time of the purchase of such note.
Loundenback vy. Lowery, 2 Circ. Dec. 422 (4 R. 65). (1889.)

It is no defense to an action commenced by the endorsee of a
promissory note against the maker thereof that the latter, in obe-
dience to an order issued against him as garnishee by a justice of
the peace in an action commenced against the payee, paid the amount
due into court, unless the answer avers that he had no knowledge
of the transfer at the time of such payment; an averment that he
was without such knowledge at the date of the order, is not sufficient.
The presumption is that he had such knowledge at the date of the
payment, and in the absence of an averment to the contrary the
defense is bad on demurrer. Plymouth State Bank v. Milligan et al.
14 Dec, 481. (1904.)

Where one takes a note from a trustee with notice that he repre-
gents persons who are engaged in buying the stock of a bank to pro-
tect the depositors and stockholders, he is chargeable with notice of
the trustee’s authority to execute the note. Burkhardt v. Zimmerman,
1 Dec. 659 (32 Bull. 188). (1887.)

If a person received a note in the usual course of trade and for
a fair and reasonable consideration, still if he had actual notice of
the fraud by which the indorsement was obtained it would defeat a
recovery. Wilhelm v. Snowden, Ohio Dec. (Dayt.) 435. (1869.)

Where the indorsement of a note is shown to have been procured
by fraud, the onus is upon the plaintiff to prove that he received
the note before due in the usual course of trade for a valuable con-
sideration. Ib.

3173b (4954) [Rights of Holder in Due Course.] A holder
in due course holds the instrument free from any defect of title
of prior parties, and free from defenses available to prior par-
ties, among themselves, and may enforce payment of the in-
strument for the full amount thereof against all parties liable

thereon.
As a general rule the promissory note of a person non compos men-
tis, is invalid; but the rule is subject to the qualification that when
88 OHIO NEGOTIABLE INSTRUMENTS.

such a note is given for necessaries, or for other adequate consideration
of benefit furnished the maker, in good faith without knowledge of his
unsound mental condition, it may be enforced to the extent of the
value of the consideration so furnished. Hosler v, Beard, 54 Ohio St.
398. (1896.) Such mental incapacity of the maker is prima facie a
complete defense to an action on a note signed by him, and when in-
terposed, the burden is upon the plaintiff to prove the consideration for
the note, and other facts necessary to overcome such defense and entitle
him to recover. Ib.

The indorsee of a negotiable promissory note, who purchases it be-
fore maturity, for a valuable consideration, without knowledge of facts
which impeach its validity, may recover the amount due by the terms
of the note, although the amount paid was less than the face of it, and
although the note was obtained by the payee of the maker by illegal
and fraudulent means, unless it appears that there was not power to
issue the note, or the circumstances of its inception were such as to
make it absolutely void by statute. Kitchen v. Loudenback, 48 Ohio
St. 177. (1891.)

A promissory note containing the words, “I promise to pay to the
order of myself,” having been signed by two persons and placed by one
of them in the hands of the other to be by him put in circulation for
his own benefit, the latter may, before the note is due, by indorsing
his name thereon, invest a bona fide holder with a complete title there-
to, although the name of the other maker is not so indorsed. Bank v.
Fowler; 36 Ohio St, 524. (1881.) 5

In violation of an agreement between principal and surety in a
promissory note, the principal transferred the note, before due, as
collateral security for an extension of ten days in the time of payment
of a protested draft for a less amount, the person receiving the col-
jateral acting in good faith, and having no knowledge of such agree-
ment: Held, that the title of such holder, to the extent of the draft,
is valid. Ib.

In an action on a negotiable note which the plaintiff holds by
assignment before due, in consideration of, and as collateral security
for a loan made by him to the insolvent payee, against whom the maker
is entitled to an equitable set-off to the note; the plaintiff will be
limited in his recovery against the maker to the amount of the debt
which the note secures, and will not, in addition thereto, be allowed
the amount of his attorney’s fees in prosecuting the action. Second
National Bank of Cincinnati v. Hemingray, 34 Ohio St. 381. (1878.)

A. person possessed of the ordinary faculties and ability to read,
signed and delivered a negotiable promissory note without knowing it
to be such, but without reading the same, having an opportunity to do
80, relying solely on the representation of the payee that the paper was
an instrument other than a note: Held, as against a bona fide holder
RIGHTS OF THE HOLDER. 89

before maturity for value, such maker will not be permitted to deny the
due execution of the note. Winchell v. Crider, 29 Ohio St. 480. (1876.)

In an action against the maker by a bona fide indorsee, before due
and for value of a negotiable promissory note, the defendant is liable
if guilty of negligence in the execution thereof, although he did not
intend to sign a note,and was induced through fraudulent representa-
tions as to its character, to believe that the instrument executed was
one of a different purport. Ross v, Doland, 29 Ohio St. 478. (1876.)

A person who negligently signs and delivers to another a printed
form of a negotiable promissory note containing blanks, without know-
ing it to be such is estopped, as against a subsequent bona fide holder
for value and before due, from denying authority in the person to
whom it was delivered to fill the blanks. Ib,

In an action against the maker, by an indorsee of a negotiable
promissory note, who purchased the same for a valuable consideration,
before maturity, and without notice of any fraud or infirmity as be-
tween the original parties, the defendant is not liable where itis shown:
1. That at the time of signing and delivering the note, he was in-
duced, by fraudulent representations as to the character of the paper,
to believe that he was signing and delivering an jnstrument other than
a promissory note. 2. That his ignorance of the true character of the
paper was not attributable, in whole or in part to his own negligence
in the premises. DeCamp v. Hamma, 29 Ohio St. 467. (1876.)

Where the debtor of a bank of which A was cashier, transferred
a negotiable note in payment of his indebtedness, to A, by special in-
dorsement, and thereupon the bank, to enable A to bring suit thereon,
assigned its interest in the note to him: Held, such indorsement and
transfer having been made before maturity of the note, the same in
the hands of A is not subject to any defense of which neither he nor
the bank had notice at the date of the transfer. White v. Stanley, 29
Ohio St. 423. (1876.)

The fact that in a proceeding in chancery under Sec. 16 of the
act of March 14, 1831, “directing the mode of proceeding in chancery”
(3 Chase, 1697), the maker of a negotiable note has been decreed to
pay the amount thereof into court to be applied toward the satisfaction
ef a judgment against a defendant in such proceeding who was the
holder of such note at the time of the service of process upon such
holder, does not constitute a defense to a subsequent action on the
note by a bona fide holder thereof, and who received the same for
value, and without actual notice of the pendency of the proceeding in
chancery, after the service of process upon his indorser. Stone v.
Elliott, 11 Ohio St, 252. (1860.)

A bona fide holder of negotiable paper, received by indorsement or
other proper mode of transfer before due, for a valuable consideration,
is protected against the defense which the maker might have against the
original payee; yet in this case, as in every other, it is the duty of
90 OHIO NEGOTIABLE INSTRUMENTS.

every person to use ordinary care and prudence in his transactions to
prevent their operating to the prejudice of others. McKesson v. Stan-
berry, 3 Ohio St. 156. (1853.)

A pre-existing debt is a good consideration for the transfer of a
negotiable note, and a bona fide indorsee, without notice, takes the
note discharged of prior equities. Carlisle v, Wishart, 11 Ohio 172.
(1842.)

Where a negotiable note has, before it fell due, been transferred
jn consideration of a pre-existing debt, the maker cannot as against
the person receiving it, without notice, take advantage of any equities
between himself and the payee. Ib.

An action can be sustained on the common counts, by the holder
against a remote indorser of a promissory note. Harris v. Clark, 10
‘Ohio 6. (1840.)

Knowledge that a negotiable note was given in exchange for a
nonnegotiable one does not affect the title or rights of a bona fide pur-
chaser before maturity. American Exch, Nat’l Bank v, Granite Co. 10
‘Cire. Dec. 814 (19 R. 650). (1900.)

Where a note is transferred to a bona fide holder for value before
maturity, and by him is transferred after maturity. to one having
knowledge of defenses, the latter transferee can recover thereon as
he takes the title of the bona fide holder. Sherman v. Peoples’ Invest-
ment Co, 10 Cire, Dec. 33. (1899.) ‘

A “red line wheat” note is good in the hands of a bona fide holder.
Kitchen v, Loudenback, 2 Cire. Dec. 129 (3 R. 228). (1888.)

Although the payee of a “red line wheat” note cannot recover
thereon, it is valid in the hands of a bona fide holder; and if his title be
otherwise perfect it cannot be impeached by showing that he took the
note under circumstances which ought to excite suspicion in the mind
of a prudent man unless it is further shown that his purchase was in
bad faith. Ib.

A bona fide holder of a negotiable note though void as between the
original parties can recover the full amount of the note without regard
to the consideration he paid therefor. Ib.

A stipulation in a note that the title to the property for which it
is given shall not pass until the note is fully paid, and in case of pay-
ment when due for a discount, will not render a bona fide indorsee
for value liable to equitable defenses. Mansfield Savings Bank v, Miller,
1 Cire. Dec. 383 (2 R. 96). (1887.)

A written instrument providing that it shall be payable and nego-
tiable without offset is not subject to defenses growing out of trans-
actions between the maker and payee as against a bona fide indorsee
before maturity in the ordinary course of business. Ib.

A party may recover upon a lost promissory note without giving
indemnity to the maker, if it be shown that the note, although nego-
‘tiable, was not endorsed, and that the party suing is still the bona jide
RIGHTS OF THE HOLDER. 91

owner of the debt. Toohey v. Hallman, Ohio Dec, (Dayt.) 408.
(1872.)

Taking negotiable promissory note with full notice that the note
was a mere gift does not prevent an indorsee for value before maturity
from taking a good title. Second Nat. Bank v. Morrison, 3 Re. 534.

3173c (4955) [When Subject to Original Defenses.] In
the hands of any holder other than a holder in due course, a
negotiable instrument is subject to the same defenses as if it
were non-negotiable. But a holder who derives his title through
a holder in due course, and who is not himself a party to any
fraud or illegality affecting the instrument, has all the rights
of such former holder in respect of all parties prior to the

latter.

A note signed by a person non compos mentis, though negotiable
in form, is not within that rule of commercial law which protects
negotiable paper in the hands of a bona fide holder for value against
defenses to which it was subject in the hands of the payee. The
purchaser takes it charged with notice of the maker’s disability, occu-
pies no better position as against him than the payee, and is subject
to the same burden of proof when the maker’s incapacity is pleaded
in defense to an action brought by the holder. Hosler v. Beard, 54
Ohio St. 398. (1896.)

In a suit by an indorsee of a past-due promissory note against
the maker, the latter may, under the provisions of Sec. 5077, Rev.
Stat., claim the note compensated by an indebtedness due him from
an indorsee, intermediate between the plaintiff and the payee, to the
extent that one claim equals the other, where such indebtedness existed
during the period the note was held by such indorsee, and the note
and the indebtedness were then past due. In such case the right is
not limited by Sec. 3173, Rev. Stat. Where such right exists in favor
of the principal maker of a note, his surety may, when sued alone,
avail himself of it. Wyman v. Robbins, 51 Ohio St. 98. (1894.)

A person, other than the payee, who brings an action against
the maker of a note payable to the order of the payee, and frames
this petition under Sec. 122 of the code, without giving a copy of an
indorsement by the payee, is not entitled, under such petition, to
the protection given to a bona fide indorsee for value and before ma-
‘turity, although the note when offered in evidence appears with the
name of the payee indorsed thereon. Tisen v. Hanford, 31 Ohio St.
193. (1877.)

Where the payee and holder of a promissory note, before its
‘maturity, agrees with the maker to give further specified time for its
payment, in consideration of a sum of money then and there paid
him by the maker, such agreement is a valid contract, and may be
set up as a temporary bar in an action brought before the expiration
92 OHIO NEGOTIABLE INSTRUMENTS.

of such further time against the maker by an assignee who acquired
the note after maturity, or with notice. Peck v. Beckwith, 10 Ohio
St. 498. (1860.)

An indorsee is not an innocent holder if the note was given in
payment of a horse in the sale of which there was a fraudulent con-
cealment and the indorsee and seller were owners of the horse and in
the sale the seller acted as the indorser’s agent. Pease v. McClelland,
40. F. D. 82. (1866.)

3173d (4956) [Who Deemed Holder in Due Course.]
Every holder is deemed prima facie to be a holder in due course;
but when it is shown that the title of any person who has negoti-
ated the instrument was defective, the burden is on the holder
to prove that he or some person under whom he claims acquired
the title as a holder in due course. But the last mentioned rule
does not apply in favor of a party who became bound on the
instrument prior to the acquisition of such defective title.

The doctrine of lis pendens does not apply to negotiable paper,
transferred before due, in due course of business for value. Railway
Co. v. Lynde, 55 Ohio St, 23. (1896.)

Where the indorsee of a negotiable promissory note pays cash
therefor he is a purchaser in the usual course of trade, notwithstand-
ing the fact that he paid for the note a sum less than its fair and
reasonable value. Tod v. Wick Bros. 36 Ohio St. 370. (1881.)

Re-Subdivision 5.

LIABILITIES OF PARTIES.

3178e (4957) [Liability of Maker.] The maker of a nego-
tiable instrument by making it engages that he will pay it ac-
cording to its tenor, and admits the existence of the payee and
his then capacity to indorse.

The indorsement of the maker’s name on the back of a promis-
sory note payable to his order, and its delivery in that form to an-
other for value, are essential parts of the execution of the note, which
then becomes, in legal effect, payable to the holder or bearer; but
the maker does not thereby become an indorser in the legal sense
of the term, nor contract any liability but that of a maker. Ewan
v. Brooks-Waterfield Co, 55 Ohio St. 596. (1897.)

R held the promissory note of the firm of T G & Co. After it
was given, some members of the firm retired, leaving assets sufficient
to pay all debts, and taking the obligation of the succeeding new firm
to pay all debts and save the retiring partners harmless: Held, that
unless R, by some valid contract, express or implied, had made himself
a party to this new arrangement, or had so acted as to be estopped,
LIABILITIES OF PARTIES. 93
t

his rights on the note against all the members of the old firm re-
mained unchanged; that while, as between the partners themselves,
the relation of principal and surety existed, yet, as to the payee of the
note, all were principals and joint debtors, although notice of such
obligation was brought home to him. Rawson v. Taylor, 30 Ohio St.
389. (1876.)

Where the payee of such note has received from the new firm a
chattel mortgage of the partnership property sufficient, if applied, to
satisfy the debt, he may, with the assent of the retiring partners, re-
lease the mortgage, and return the property or its avails to the new
firm, without impairing his rights against all the joint obligors on the
note, even though he had such notice of the subsequent contract be:
tween the partners. Ib.

Where subscribers to the stock of a railroad company had given
their notes for the amounts of subscription, payable when the road
should be completed, but were subsequently induced to take up these
notes, and to give new ones, payable in four years, in order to enable
the company to carry out a contract for the completion of the road,
and upon the confidant but honest expression of opinion by its officers,
that if they would do so, the road would be completed under such
contract in less than four years: Held, that although the said con-
tract for building the road was afterward, and before anything had
been done under it, abandoned by the contractor, and the road has
never been completed, yet the subscribers are liable upon their said
new notes. Railway Co. v. Bailey, 18 Ohio St. 208. (1868.)

Where a note reads thus: “One year after date, we or either of
us, as directors of the Hamilton, Middletown and Germantown turn-
pike road, promise to pay to J K, or order, five hundred dollars, for
value received, with eight per cent. interest until paid,” and dated
and signed by the makers, without further designation of official
capacity, they are Jiable individually. Titus v. Kyle, 10 Ohio St. 444,
(1859.)

Where no fraud or mistake in the execution of the instrument is
averred by the makers, they will not be permitted to set up an inten-
tion on their part not to bind themselves individually, but only in
their representative capacity as directors, when such intention is
different from the legal import of the writing itself, on its face. Ib.

In an action on a promissory note given by the party in custody
before a justice of the peace, on a charge of being the father of a
bastard child, to the mother of such child, for a compromise of such
prosecution and for the support of the child, the facts that the agree-
ment of compromise was not acknowledged before a justice, that no
memorandum of the same was entered on the docket and that no bond
was given conditioned that the child should not become a township
charge, constitute no defense to the action. Maxwell v. Campbell,
8 Ohio St. 265. (1858.)
94 OHIO NEGOTIABLE INSTRUMENTS.

In an action by a second indorsee against the maker, the latter
is not entitled to set off a demand against the plaintiff’s indorser.
Lillie v. Bates, 2 Circ. Dec. 54 (8 R. 94). (1888.)

In an action on a note the makers cannot show an oral agreement.
that another person not on the note is alone liable thereon. Ib.

Evidence of an oral agreement made contemporaneously with the
execution of a note to the effect that a stranger to the paper instead
of the maker is to be alone liable for its payment is inadmissible in
an action on such note. Ib.

In an action against the maker by the holder of a nonnegotiable
note the maker cannot set off an independent past due claim purchased
by him against the payee of such non-negotiable note after the same
had been so transferred to such holder. Whims v. Grove, 1 Circ.
Dec, 59 (1 R. 98). (1885.)

A maker by voluntarily paying a promissory note with full knowl-
edge of all the facts waives all right of equitable relief to set off
independent debts. United States Bung Mfg. Co. v. Armstrong, 6 O.
F. D. 29. (1888.)

Where one signs as principal, he will not, even in equity, be per-
mitted to show that he was in fact only surety. Sprigg v. Bank, 2
oO. F, D. 12. (1840.)

The rule “that the plaintiff can recover the amount actually paid
if not the face value of the note” only applies as between the endorser
and endorsee, and not between the maker and endorsee. Boyd v.
Cramer, Ohio Dec. (Dayt.) 42. (1869.)

In an action upon a note made to the wife of the plainitff, it will not
avail the defendant as a defense that he knew nothing of the fact
that the funds were held in trust for her husband, and that he sup-
posed he was borrowing her money. Bradstreet v. Tate, Ohio Dec.
(Dayt.) 54. (1867.)

381737 (4958) [Liability of Drawer.] The drawer by
drawing the instrument admits the existence of the payee and
his then capacity to indorse; and engages that on due present-
ment the instrument will be accepted and paid, or both, accord-
ing 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 instru-
ment an express stipulation negativing or limiting his own lia-

bility to the holder.

Where the drawer of a check, before delivering it to the payee,
has it certified as good by the bank upon which it is drawn, and the
payee presents it in due season for payment, and gives due notice to
the drawer of its nonpayment and the bank had failed at the time of
LIABILITIES OF PARTIES. 95.

its presentment for payment, the drawer will not be discharged from
liability on the check. Oyster Co, v, Bank, 51 Ohio St. 106. (1894.)

By the act of drawing and issuing a bill of exchange, the drawer
contracts that it will be accepted and paid according to its terms, and
that if it is not he will pay it. Cummings v. Kent, 44 Ohio St. 92.
(1886.) :

Cummings was indebted to Kent. Chamberlain was indebted to
Cummings in the same amount and more. Cummings drew bills of
exchange upon Chamberlain in favor of Kent, for the amount of his
indebtedness to the latter, which were accepted but not paid. There
were due presentation, demand, and notice of dishonor. In an action
by Kent upon the bills, Cummings answered that Kent agreed to
take the acceptances in payment of his claim against Cummings, and
that the latter drew the bills only for the purpose of assigning to Kent
his claim against Chamberlain. Upon the trial Cummings offered to
prove that prior to and at the time of drawing the bills, there was a
parol agreement that he was not to be liable thereon as drawer:
Held, the evidence was properly excluded. Ib.

Evidence of a parol agreement, prior to or contemporaneous with
the drawing and delivery of a bill of exchange, that the drawer is
not to be liable as such, is inadmissible. Ib,

The liability of the drawer of a bill of exchange is fixed by the
due presentation, demand, and notice of dishonor. Ib.

If the drawee of a bill of exchange is without funds of the drawer,
and pays the bill, he is entitled to be reimbursed by the drawer; and
if there are several drawers, part of whom are securities for the others,
all are alike liable to reimburse the drawee in the absence of any
understanding to the contrary. Church v. Swope, 38 Ohio St, 493.
(1882.)

31739 (4959) [Liability of Acceptor.] The acceptor by
accepting the instrument engages that he will pay it according
to the tenor of his acceptance and admits:

1. The existence of the drawer, the genuineness of his sig-
nature, and his capacity and authority to draw the instrument;

and,
2. The existence of the payee and his then capacity to
indorse. .

Upon a letter from persons in New Orleans, addressed to one in
Cincinnati, stating that bills to the extent of $10,000 would be duly
honored by them up to a certain date, the same being accompanied by
a bill of lading of shipments to their address by steamboats, an action
may be maintained for a breach of promise to accept in his own name,
by a third person, who, upon the faith of such letter, has taken bills
drawn according to its provisions. Lonsdale v. Lafayette Bank, 18
Ohio 126. (1849.)
96 OHIO NEGOTIABLE INSTRUMENTS.

The general rule that the drawee of a check, draft, or bill of ex-
change, is held to know the signature of the drawer, and makes pay-
ment at his own peril, has not been modified in this state, except by
local custom. Ellis vy. Insurance Co. 4 Ohio St, 628. (1855.)

If A obtained goods of B by false pretenses, and give therefor an
accepted draft upon C—an accommodation acceptor—it is no defense
to an action of replevin instituted by 8 against a stranger, in whose
possession the goods are found, that the draft had not been previously
returned to A. Frost v. Lowry, 15 Ohio 200. (1846.)

A discharge by the holder of a bill of one of several copartners
accepting, is a discharge of the others. Wescott v. Price, Wright 220.
(1833.)

Unless it conclusively appears that an action against the company
was upon the indorsement or acceptance by an officer, who signed the
draft as “Treas.,” and not against the company as maker, the rule
that plaintiff, having elected to sue the company upon the acceptance
cannot afterwards sue the officer individually, does not apply; and
plaintiff, having failed to recover of the company as maker has a
right to sue the officer who indorsed the draft, in the manner stated,
as acceptor. Eells v. Shea, 11 Circ. Dec, 304 (20 R. 527). (1900.)

A judgment in an action against a company as maker of a draft
-of “settled, no record; the defendant to pay the costs and judgment
for costs entered upon the suit,” which would bar another action be-
tween the same parties, is not a bar to a subsequent action against
the officer individually, as acceptor. Therefore, where such judgment
is called in question collaterally, in a suit against such officer indi-
vidually, it is competent to show the agreement involved in such
settlement. Ib.

A payee and indorser of a note payable at Fostoria, Ohio, by
accepting the same, assumes the liability that the maker may change
his residence and in presentment and notice must use such diligence
as the circumstances of the case requires. Wood v. Rosendale, 10
Circe. Dec. 66. (1899.)

3173h (4960) [When Person Deemed Indorser.] A per-
son 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.

Where a party to a promissory note so signs the same as to indi-
cate, prima facie, that he was an original promisor, he may, as be-
tween himself and the other parties bound for the payment of the
note, show that he was in fact a guarantor or additional surety.
Hecker v. Mahler, 64 Ohio St. 398. (1901.)

B, an officer of the city of Cleveland, having a salary payable
quarterly, made a draft on H, the treasurer of the city, for $1,125,
LIABILITIES OF PARTIES. 97

payable to the order of C on the eighth day of April, 1874, and directed
that the amount of the draft be charged to his salary for the quarter
then ending and waived demand and protest. The draft was indorsed
by C to D: Held, the draft was negotiable and created between B
and C, the relation of drawer and indorser. Carran vy. Little, 40 Ohio
St, 397. (1884.)

Where a bill of exchange is made payable to S, and at the time of
its execution C signs his name on the back, he becomes a party to the
request upon the drawee to pay the bill; and in an action by the
drawee to recover the amount paid in taking up the bill, C is to be
regarded as a drawer. Church v. Swope, 38 Ohio St. 493. (1882.)

Whenever the obligation of a party appearing upon the back
of a negotiable paper, can, at that time, take effect as an indorse-
ment, it should be held to do so as conforming more nearly to the
general intention of parties assuming that position upon it. Green-
ough v, Smead, 3 Ohio St. 416. (1854.) :

When the name of a stranger is indorsed upon a promissory note,
no recovery can be had against him, charging him as maker, without
proof that the indorsement was made at the time of the execution of
the instrument, or that he intended to be held as such maker. Robin-
son v. Abell, 17 Ohio 36. (1848.)

Where the answer alleges that defendant’s indorsement on the
note involved was placed there merely as a memorandum and not to
pass title, and this is denied by the reply, the burden is on the defend-
ant to prove such fact not only by a preponderance of evidence but
by clear and convincing proof. Olinger v. McGuffey, 1 0. S. C. D.
520 (36 Bull. 305). (1896.)

Evidence of a contemporaneous agreement is not competent to
‘vary or enlarge the contract of indorsement. Shaul v. McCauley, 1
O. S. C. D. 380 (34 Bull. 278). (1895.)

An indorsement, “I assign all my interest, right and title of the
-within note to M,” creates the liability of an indorser and not that
of a mere assignor. Lenhart v. Ramey, 2 Circ. Dec. 77 (3 R. 135).
(1888.)

Quaere: What relation does a stranger to the original note sus-
tain by signing the note underneath the signature of the original
‘maker. Is he maker, surety or guarantor of payment? Smucker v.
Wright, 2 Circ. Dec. 360. (1889.)

A plea that defendant indorsed as guarantor, and not as prin-
cipal, is good. Dibble v. Duncan, 2 O, F. D. 145. (1841.)

Where in an action seeking to charge defendants as indorsers
of a note, the copy of the note shows the names of defendants as entire
strangers on its back, and it does not appear from the petition that
the name was put on the note at the time of its execution or in pur-
suance of any agreement to become responsible, such defendants
are guarantors and not indorsers. In such the petition must allege
98 OHIO NEGOTIABLE INSTRUMENTS.

facts sufficient to charge defendants as guarantors. Conkey Co, v.
Skillman, 11 Dec. 812. (1895.)

31731 (4961) [Liability of Irregular Indorser.] Where a
person not otherwise a party to an instrument places thereon
his signature in blank before delivery, he is liable as indorser
in accordance with the following rules:

1. “If the instrument is payable to the order of a third per-
son, he is liable to the payee and to all subsequent parties.

2. If the instrument is payable to the order of the maker
or drawer, or is payable to bearer, he is liable to all parties sub-
sequent to the maker or drawer.

3. If he signs for the accommodation of the payee, he is
liable to all parties subsequent to the payee.

A blank indorsement may, like any other written agreement, be
reformed upon equitable principles, in an action on the indorsement,
for the purpose of a defense. In such action the cause of reformation
should be stated by way of cross-petition with a prayer for such relief;
and the averments should be supported by clear and convincing proof,
to warrant the relief. Farr v, Ricker, 46 Ohio St. 265. (1889.)

Renick, the principal maker of a promissory note, desiring to have
the same renewed, applied to the sureties thereon, who claimed to
have a defense to the note, and who declined to renew, except as sureties
for Crouse, if he would go on the paper. Afterwards Renick obtained
the signature of Crouse, a new surety, on the representation upon
which he relied that it was a renewal, and that the former sureties
would sign as his cosureties. Thereupon Renick handed the note to
the former sureties, who signed stipulating as sureties for Crouse
without his knowledge, and without any inquiry or information as
to the circumstances under which he signed: Held, the stipulation
is ineffective, and the sureties are cosureties. Crouse v. Wagner, 41
Ohio St. 470. (1885.)

Where a bill of exchange is made payable to S, and at the time
of its execution C signs his name on the back, he becomes a party
to the request upon the drawee to pay the bill; and in an action by
the drawee to recover the amount paid in taking up the bill, C is
to be regarded as a drawer. Church v, Swope, 38 Ohio St. 493. (1882.)

An accommodation drawer of a bill of exchange made payable to
a particular bank, for the purpose of being discounted by the bank
named, cannot be held liable on the bill to a third person, who, after
discount by the bank had been refused, took the bill from the prin-
cipal for value; nor can he be held liable to the bank, where it sub-
sequently discounts the bill for such third person, with notice of the
suretyship of the drawer. The Knox County Bank of Mt. Vernon v.
Lloyd’s Administrators, 18 Ohio St. 358. (1868.)
LIABILITIES OF PARTIES. 99

Whenever the obligation of a party appearing on the back of
a negotiable paper, can, at that time, take effect as an indorsement,
it should be held to do so as conforming more nearly to the general
intention of parties assuming that position upon it. Greenough v.
Smead, 3 Ohio St. 416. (1854.)

If A obtains goods of B by false pretenses, and gives therefor an
accepted draft upon C—an accommodation acceptor—it is no defense
to an action of replevin instituted by B against a stranger, in whose
possession the goods are found, that the draft had not been previously
returned to A. Frost v, Lowry, 15 Ohio 200. (1846.)

Where an accommodation indorser indorses a second note and
negotiates its discount with a third party having no notice, and the
proceeds are used to take up the first note, the second indorsement is
no an accommodation indorsement, but is for the benefit and pro-
tection of the indorser. Holmes v, Hayes, 1 0. 8. C. D. 206 (32 Bull.
346). (1894.)

Where a corporation note payable to another corporation is pre-
sented for discount by the president of the maker and payee’s name is
indorsed thereon by an agent of payee as agent, the presumption is
that the indorsement was for accommodation; but such presumption
may be rebutted by the fact that it was placed in such president’s
hands to have its discount negotiated by him for payee. Ib.

81737 (4962) [Warranty Where Negotiation by Delivery,
Ete.] Every person negotiating an instrument by delivery or
by a qualified indorsement warrants:

1. That the instrument is genuine and in all respects what
it purports to be.

2. That he has a good title to it.

3. That all prior parties had capacity to contract.

4. That he has no knowledge of any fact which would
impair the validity of the instrument or render it valueless.

But when the negotiation is by delivery only, the warranty
extends in favor of no holder other than the immediate trans-
feree,

The provisions of paragraph numbered three of this section
do not apply to persons negotiating public or corporate securi-

ties, other than bills and notes.

The bank of Belmont purchased a check drawn on the Bank of
Barnesville, from the payee thereof, who was known to the cashier,
and at his request the cashier wrote the payee’s name on the back
of the check as a blank indorsement. The cashier then indorsed the
check “for collection,” and forwarded it to its correspondent, which
also indorsed it “for collection,” and presented it to the drawee bank,
which paid it, and charged it to the account of the drawer as admin-
100 OHIO NEGOTIABLE INSTRUMENTS.

istrator, as he had no individual account with the bank. About three
months thereafter the check was found to be a forgery, and the drawee
bank caused it to be duly protested, and gave notice to the Belmont
bank, and demanded repayment of the money: Held, that the drawee
bank was bound to know the signature of its depositor, and was negli-
gent in charging the check to his account as administrator, and that
it had no right to recover the money. Bank v, Bank, 58 Ohio St. 207.
(1898.)

Presentation for payment of a check by a bank which is the in-
dorsee “for collection,” does not justify the drawee bank in relaxing
any of its vigilance in determining whether or not the name of the
drawer is genuine. Ib,

An indorsement “for collection,” is notice to the drawee that the
indorsee is not the owner of the paper, but only the agent of the
owner authorized to receive payment for him. Ib.

An indorsement of a check, draft or bill of exchange, “for col-
lection,” by one other than the payee, does not guarantee that the
name of the drawer is genuine. Ib. Such indorsement is a guaranty
that the names of the indorsers, then on the paper, are genuine. Ib.

The vendor of a promissory note who transfers it by indorsement,
impliedly warrants that the signatures of the prior parties whose
names appear thereon are genuine, notwithstanding the indorsement is
expressed to be without recourse on him. Dumont v. Williamson, 18
Ohio St. 515. (1869.)

3173k (4963) [Liability of General Indorser.] Every in-
dorser who indorses without qualification, warrants, to all sub-
sequent holders in due course:

1, The matters and things mentioned in paragraphs num-
bered one, two and three of the next preceding section; and

2. That the instrument is at the time of his indorsement
valid and subsisting.

And, in addition he engages that on due presentment, it shall
be accepted or paid or both as the case may be 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.

One who indorses and delivers a negotiable promissory note in
the usual course of business, thereby undertakes that the signatures
of all prior indorsers are genuine. The First National Bank of Mt.
Vernon vy. The First National Bank of Lincoln, Ill., 68 Ohio St, 43.

(1903.)
The undertaking of a third person who places his name in blank
on the back of a promissory note before or at the time it is so de-
LIABILITIES OF PARTIES. 101

livered by the maker, rests upon the consideration. which supports
the note in the hands of the holder, and prima facie, is that of a
surety of the maker for the payment of the note; and he will be held
accordingly, unless he can show a different understanding or agree-
ment between the parties, which it is competent for him to do. Ewan
v. Brooks-Waterfield Co. 55 Ohio St, 596. (1897.)

The indorsement of a negotiable promissory note, made to trans-
fer the title to one who has purchased it for value, is, though in blank,
an abbreviated contract in writing, whereby the indorser binds him-
self to pay the note if on presentment the maker does not, and due
notice is given him of such non-payment; and, in the absence of fraud
or mistake, the legal effect of such indorsement cannot be varied
by parol. Farr v. Ricker, 46 Ohio St. 265. (1889.)

‘Where in an action on an indorsement, evidence is offered by
the defendant in support of averments in his answer, which if true,-
would make the enforcement of the indorsement operate contrary to
the contemporaneous agreement of the parties and a fraud on the rights
of the indorser, the liberal principles of our code would, in a trial to
the court, authorize it to receive the evidence and permit an amend-
ment of the pleadings; but where the evidence is contradictory and
inconclusive, the refusal of the court to consider the evidence is not
error to the prejudice of the substantial rights of the indorser. Ib.

A promissory note negotiable in form, though overdue, is still
capable of being transferred by indorsement, and when so transferred
the indorser is, in-the absence of anything to the contrary, liable upon
his indorsement, if, in a reasonable time thereafter, the note is pre-
sented to the maker for payment and notice given in case it is not
paid. Bassenhorst v. Wilby, 45 Ohio St. 333. (1887).

A promissory note payable to M, or order, was delivered to the
payee, who indorsed it in blank, and offered it to R in part payment for
property purchased. R declined to take it without the signature
thereon of C, a stranger to the note. C thereupon, before the maturity
of the note, and to give it credit, signed his name under the indorse-
ment of the payee, and the note was then taken by R: Held, that C
was an unconditional guarantor, and that the owner and holder of the
note has a prima facie right of recovery against him, without proof
of demand and notice. Castle v. Rickly, 44 Ohio St. 490. (1886.)

The foreclosure of a mortgage after default of payment of the
first notes of the series, and payment thereof out of the proceeds of
sale, is not a bar to an action to charge an indorser on one of the
series subsequently falling due who has had due notice of demand and
non-payment. McClelland v. Bishop, 42 Ohio St. 113. (1884.)

An indorser of a negotiable promissory note is liable to his in-
dorsee, without demand of payment from the maker and notice of non-
payment, in cases where the maker is not liable to a bona fide indorsee
before maturity, and for value. Perkins v. White, 36 Ohio St. 530.
(1881.) And, to exonerate the maker from liability to such indorsee,
102 OHIO NEGOTIABLE INSTRUMENTS.

on a note which he signed and delivered, believing at the time that
the paper signed and delivered was another instrument, it is necessary
to show that the maker was without fault or negligence in the prem-
ises. Ib. But in a special finding of the facts by the court, a finding
that such maker was unable to read or write is not equivalent to a
finding that he was free from fault or negligence. Ib.

The contract between the principal and his surety, although it
may be expressed or be implied from the terms of the contract with
the creditor, is not necessarily contained therein, nor evidenced there-
by, but may be and usually is a collateral contract, express or implied,
which may ve shown to exist by any competent and satisfactory evi-
dence. McKee v. Hamilton, 33 Ohio St. 7. (1877.)

Where H, as managing partner of a firm, in order to procure a
loan from a third party, brought to plaintiffs a note payable to such
third party, and signed by himself individually, and to induce them
to become sureties of the firm for such loan represented that the
proposed loan was on partnership account and for its use, and that
his partner would also sign said note individually, which he subse-
quently did, that being the usual mode of their executing partnership
obligations, and upon the faith of such representations the plaintiffs
became liable as sureties by signing said note on the credit of the
partnership, and the money is borrowed, received, and used in its
business: Held, that this created a partnership liability, and plain-
tiffs became sureties of such partnership. Ib.

The payee of a negotiable promissory note, who, on transferring
it to a third party, writes his name on the back and guarantees its
payment at maturity, is a party to such note within the meaning of
Sec, 38 of the code, and may be sued jointly with the maker. The lia-
bility of such party is, within the meaning of the section of the code
above referred to, substantially the same as that of an indorser who
has waived demand and notice. Kautzman v. Weirick, 26 Ohio St.
330. (1875.)

Where A, as a security on behalf of the maker to the payee of
the note, at the time of its execution writes his name on the back
thereof, having previously refused to become a joint maker, and
having stated that he would assume only the obligations of an in-
dorser, he will be regarded, at zeast as a conditional guarantor, and
his liability to the holder of the note, like that of an indorser to an
indorsee, will be fixed by demand and notice. Seymour v. Mickey, 15
Ohio St, 515. (1864.)

It is the settled law of the state, that where a person who is not
a party writes his name in blank on the back of a promissory note,
at the time of its execution and delivery, the prima facie presumption
is, that he is a maker of the note, and he may accordingly be treated
as a surety. This ordinary presumption may, however, be rebutted
by parol evidence of a different intention and agreement of the parties;
to which when proved, a controlling effect will be given. Ib. Where
LIABILITIES OF PARTIES. 103

the design of such indorsement, in blank, is to give to the payee
additional security for the payment of the note, parol evidence tending
to limit the liability of such indorser will be construed, if possible,
so as not to defeat the general intention. Ib.

Parol proof is admissible to show the intention of the parties as
to the extent of the indorser’s liability, Bright v, Carpenter, 9 Ohio
139. (1839.)

Where a stranger to a promissory note indorses it in blank at the
time of making it, the payee of the note may sue him with the maker,
as a joint maker of the note, and he is entitled to the privileges of a
surety. Ib,

The guarantors of payment of a promissory note cannot be
charged unless payment be demanded of the maker when due, and
notice of non-payment be given to the guarantors. Greene y. Dodge,
et al, 2 Ohio 431. (1826.)

As between the parties to an indorsement of a negotiable note,
the real transaction under which the indorsement was made may
always be shown, though it is otherwise, as it regards strangers.
Where note is indorsed after due, or with notice of real transaction
between the parties, the circumstances may be proven. Hays v. May,
Wright 80. (1882.)

Evidence of contemporaneous parol agreement is not competent
to vary or enlarge the written contract of indorsement. Shaul v.
McCauley, 1 O. S. C. D. 380 (84 Bull. 278). (1895.)

Mere inaction will not discharge an indorser; some affirmative act
is necessary. Therefore, the failure of the holder of a promissory
note secured by chattel mortgage to refile the same, and thereby
losing the security does not discharge an indorser. Ib.

The legal import of an indorsement in blank, unrestricted and
unambiguous, cannot be varied by parol evidence. Spaulding v, Allen,
10 Cire. Dec. 397 (19 R. 608). (1899.)

An indorser is not relieved of his liability by the execution of
an agreement as part of the same transaction, which merely recites
that the note is received in full satisfaction of a certain claim and
that the indorser is given full acquittance of such claim. Markey v.
Waldo, 9 Cire. Dec. 762. (1898.)

The indorser of a note is a necessary party to a proceeding in
error brought by the maker to reverse a judgment rendered against
both maker and indorser. Work v. Christie, 6 Cire, Dec, 255 (9 R,
439). (1895.)

A bona fide indorsee of a negotiable promissory note, upon giving
due notice of dishonor, is entiled to recover the full amount of the
note from the indorser regardless of the amount such indorsee may
have actually paid for such note. Mackey v. Burwell, 2 Cire. Dec.
588 (4 R. 348). (1890.)

Where an indorser who becomes responsible for the debt on the
note of a corporation, extends the time of payment and releases the
104 OHIO NEGOTIABLE INSTRUMENTS.

corporation and other indorsers thereon, and returns the security to
the obligor, it is a sufficient consideration for a mortgage upon his
own property. Thompson Nat. Bank v. Corwine, 12 O, F. D. 593.
(1898. )

An agreement prior to the signing of a note that the bank dis-
counting it should only look to the indorser for payment, is no de-
fense in an action on such notes. Armstrong v. Scott, 6 O. F. D. 211.
(1888.) :

Courts will take notice of a usage in transmitting bills from one
part of the country to another, especially bills for collection, where the
forms of indorsement are influenced by usage. Lee v. Bank, 3 O. F.
D, 601. (1860.)

The indorsement of a negotiable note in different states by dif-
ferent indorsers will be governed on dishonor of such note by the local
law of the place where each indorsement was made. Dundas v. Bowler,
20. F. D. 298. (1844.)

An indorser of a note before delivery, is a joint maker in the
absence of an agreement with the indorsee limiting his liability.
Second Nat. Bank v, Morrison, 3 Re. 534. (1897.)

One indorsing or guaranteeing a note made to a corporation will
not be permitted to escape liability thereon by denying the corporate
capacity of payee. Conkey Co. v, Skillman, 11 Dec. 812. (1895.)

The vendor of a promissory rote who transfers it by indorsement
impliedly warrants that the signatures of the principal parties whose
names appear therein are genuine notwithstanding the indorsement
is “without recourse.” Wilhelm v. Loop, 8 Dec. 444, 445. (1898.)

A cause of action against a person as an indorser on a promissory
note and one on an oral agreement to pay the note made after knowl-
edge that the indorsement was forged, cannot be joined. Ohio Valley
Nat. Bank v. Ronsheim, 1\Dec, 221 (31 Bull. 99). (1894.)

Where an indorser, ignorant of the fact that liability has never
peen fixed by demand and notice, promises to pay on the supposition
that he is legally liable, his mistake of fact avoids the new promise
and there is no sufficient consideration to support it. Graflin v, Gib-
son, 3 Re, 236. (1897.)

The indorsement of a negotiable promissory note in blank implies
that the indorser thereby transfers all his interest in it, and that upon
proper demand and notice he will be liable to the holder for the
maker’s default. Newcomer v. Hollingsworth, Ohio Dec. (Dayt.) 277.
(1872.)

Where S makes his note payable to the order of D and the same
was indorsed by the latter in blank, and is now held by the plaintiff,
the presumption is that it was made and indorsed for a sufficient
consideration and was received by the plaintiff in the usual course
of trade for a valuable consideration, and in good faith. Wilhelm v.
Snowden, Ohio Dec. (Dayt.) 485. (1869.)
LIABILITIES OF PARTIES. 105:

81731 (4964) [Liability of Indorser Where Paper Negoti-
able by Delivery.] Where a person places his indorsement on
an instrument negotiable by delivery he incurs all the liabilities.
of an indorser.

3173m (4965) [Order in Which Indorsers are Liable.]
As respects one another, indorsers are liable prima facie in the
order in which they indorse; but evidence is admissible to show
that as between or among themselves they have agreed otherwise.
Joint payees or joint indorsees who indorse are deemed to in-
dorse jointly and severally.

Where a joint note is signed by the principal and by one as his
surety and is entrusted by the surety to the principal without limit
on his authority, such surety thereby impliedly authorizes the prin-
cipal to obtain such additional sureties or guarantors as may be re-
quired to make the paper available for the purpose intended by the
original makers, and the sureties or guarantors so obtained may stipu-
late the terms of their liability, as between themselves and prior
parties. Oldham v, Brown, 28 Ohio St. 41. (1875.) One who thus
signs such a note, at the request of the principal debtor to enable him
to use it as intended, without the knowledge of the prior surety,
and without any agreement or understanding with him to the contrary,
may stipulate with the principal debtor and make it a condition of
his signing that he signs as surety of the prior parties and not as a
cosurety with the prior surety. Ib.

Such stipulation need not be in writing, and parol evidence is ad-
missible to show an express contract to that effect, or facts and cir-
cumstances that will raise an implied contract. Ib.

The indorsers of an accommodation bill are not joint sureties,
but are liable to each other in the order of their becoming parties.
Williams v. Bosson, 11 Ohio 62. (1841.)

Indorsers of promissory notes, indorsed for the use and accommo-
dation of the drawer, are co-securities, and the last indorser cannot
recover more than a contributable share against a previous indorser.
Douglas v. Waddle, 1 Ohio 413. (1824.)

Where several sign a note jointly, it is competent to show that
some signed as principal debtors and others as sureties. Reddish v.
Pentheuse, Wright 538. (1834.)

3173n (4966) [Liability of an Agent or Broker.] Where
a broker or other agent negotiates an instrument, without in-
dorsement, he incurs all the liabilities prescribed by section
thirty-one hundred and seventy-three j (3173j) of this chapter,
unless he discloses the name of his principal, and the fact that
he is acting only as agent.
106 OHIO NEGOTIABLE INSTRUMENTS.

Re-Subdivision 6.

PRESENTMENT FOR PAYMENT.

31730 (4967) [Effect of Want of Demand on Principal
Debtor.] 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, and has funds there
available for that purpose, such ability and willingness are
equivalent to a tender of payment on his part. But except as
herein otherwise provided, presentment for payment is necessary
in order to charge the drawer and indorsers.

The known insolvency of the maker, and that he himself cannot
pay, does not dispense with the necessity of presentment for payment
in order to fix the liability of the indorser. Bassenhorst v. Wilby,
45 Ohio St. 333. (1887.)

An indorser of a negotiable promissory note is liable to his in-
dorsee, without demand of payment from the maker and notice of
nonpayment, in cases where the maker is not liable to a bona fide
indorsee before maturity, and for value. Perkins v. White, 36 Ohio
St. 530. (1881.)

Where a bona fide indorsee of a negotiable note, after becoming
such indorsee, acquires knowledge of a fraud practiced by the payee
upon the maker in obtaining the note, which fraud, however, could
not be made a defense by the maker against such indorsee, the sub-
sequent indorsement of the note by him without communicating such
knowledge to his indorsee, does not excuse demand and notice in order
to charge the indorser. Ib.

In the condition of a mortgage given to secure the payment of
a promissory note, payable on demand, it was provided that, if the
mortgagor should pay said note, or cause the same to be paid, the
mortgage deed should be void: Held, that demand of payment of
the note before suit was not a necessary condition to a right of action
on the mortgage. Insurance Co. v. Curtis, 35 Ohio St. 357. (1880.)

Demand and notice is not necessary as against an indorser, who
at the date of the maturity of the note, has sufficient property of the
maker in his possession held as security against his liability. Beard
vy. Westerman, 32 Ohio St. 29. (1876.)

Where the principal maker of a note assigned all his property to
assignees for the benefit of his creditors, and no steps were taken by
the holder of the note, nor by the surety thereon, towards presenting
it to the assignees for allowance and payment out of assets in their
hands: Held, that the mere omission of the holder of the note to
present it to the assignees, did not exonerate the surety from liability
thereon. Dye v. Dye, 21 Ohio St. 86. (1871.)
PRESENTMENT FOR PAYMENT. 107

Where a debtor assigns to his creditor, as collateral security, a
negotiable promissory note of a third party, before maturity, and by
the terms of the assignment waives demand and notice of non-payment,
such creditor, acting in good faith, is not bound to demand or insist
upon payment of the security before its maturity, though he may
know, at the time, that payment would be made, if insisted on. Roberts
v, Thompson, 14 Ohio St. 1. (1862.)

A gave his name in blank to B as an accommodation to enable B
to raise money; B then wrote a promissory note on the other side of
the paper payable to C or order, signed it as maker, and procured the
indorsement of C upon the back under that of A; and subsequently
procured the indorsement of D, and in this condition got it discounted:
Heid, that the holder was authorized to treat A as an indorser, and
not an original promisor upon whom demand was necessary to charge
the other indorsers. Greenough v. Smead, 3 Ohio St. 415. (1854.)

Where a bill is not protested, the principal and interest without
the statute damages is recoverable on proof, aliunde, of demand and
notice. Case v. Heffner, 10 Ohio 180. (1840.) In such case, it is
necessary to prove a demand of the maker and notice to the indorsers.
Ib.

Exception does not lie, after verdict, to the averment of a demand
of payment, on a day before or after the expiration of the days of
grace, where such averment is made under the usual videlicit and with
an additional averment that the bill was due. Peabody v. Fisher, 8
Ohio 536. (1838.)

When the maker of a note removes from the state where he re-
sided at the time of making it, into another state, the holder is not
bound to make a demand of the maker to charge the indorser. Gist v.
Lybrand, 3 Ohio 308. (1828.)

When a note-or bill is made payable at a certain time and place,
no demand is necessary to charge the maker or acceptor. Averment
of demand, though immaterial, must be proved. Conn v, Gano, 1 Ohio
484. (1824.)

An agreement between the holder of a note and his endorsee, that
the latter should sue the note, etc., and if he fail to collect, the
endorser will pay him the amount, is an agreement independent of
the endorsement, and no way affects the legal interest transferred.
Hays v. May, Wright 80. (1832.)

As between the parties to an endorsement of a negotiable note,
the real transaction under which the endorsement was made may
always be shown, though it is otherwise, as regards strangers. Ib.

Presentment to, and demand upon the maker of a note for payment
are essential to fix the liability of the endorser, unless waived or facts
108 OHIO NEGOTIABLE INSTRUMENTS.

exist which constitute a sufficient excuse for non-presenitment; a de-
mand in writing mailed or sent the maker is not, as a general rule,
a sufficient presentment to charge an endorser, Sessions & Co. v. Isabel,.
14 Dec. 491. (1904.)

3173p (4968) [Presentment Where Instrument is not Pay-
able on Demand and Where Payable on Demand.] Where the
instrument is not payable on demand, presentment must be made
on the day it falls due. Where it is payable on demand, pre-
sentment must be made within a reasonable time after its issue
except that in the case of a bill of exchange, presentment for
payment will be sufficient if made within a reasonable time after
the last negotiation thereof.

What is a reasonable time is generally a mixed question of law and
fact. Where the facts are in dispute, it should be submitted to the
jury for its determination under proper instructions from the court,
but where the material facts are admitted, or not in dispute, it is a
question for the court, and cannot properly be submitted to the jury.
In such case a reasonable time for its presentment is the lapse of such
a period after the indorsement as, under all the circumstances will en-
able the holder, in the exercise of reasonable diligence, to present the
note for payment. Bassenhorst v, Wilby, 45 Ohio St. 333. (1887.)

A certificate of deposit issued by a banking company for $4,000
jn currency, payable, in like funds, to the order thereon of the depositor,
with interest, is a negotiable promissory note, although the term
currency was regarded at the time and place of the transaction as
including the bank bills of sundry specie paying banks outside of the
state of Ohio, as well as those of the same character within the state,
Howe v. Hartness, Hill & Co, et al. 11 Ohio St, 449. (1860.)

8173q (4969) [What Constitutes a Sufficient Presentment. }
Presentment for payment to be sufficient, must be made:

1. By the holder or by some person authorized to receive
payment on his behalf.

2. At a reasonable hour on a business day.

8. At a proper place as herein defined.

4. To the person primarily liable on the instrument, or if
he is absent or inaccessible, to any person found at the place

where the presentment is made.
A’ notary public, having a bill of exchange for the purpose of de-
manding payment of an acceptor who had a short time before been a
PRESENTMENT FOR PAYMENT. 109

boarder at a public hotel at Cincinnati, is under no obligation, when
informed at the hotel that the acceptor hag gone down the river to be
absent some days, to present the bill or make demand of payment of
any one there in order to fix the liability of an indorser. Belmont
Bank v. Patterson, 17 Ohio 78. (1848.)

On a bill drawn March 20th, due at four months, a demand and
notice on the 22nd is not good. McMurchey et al. v. Robinson & Kain,
10 Ohio 496. (1841.)

A demand upon one of three joint and several promisors is suf-
ficient to charge an indorser. Harris v, Clark, 10 Ohio 6. (1840.)

In such case, it is necessary to prove a demand of the maker and
notice to the endorsers. Ib.

Presentation of a note is prima facie evidence of its execution.
Duckwall v. Zimmerman, 2 Ohio 23. (1825.)

Demand of payment on the last day of grace any time within
banking hours is sufficient and it is not necessary that such demand
be made at the close of banking hours to fix the liability of indorsers,
Evans v. Lumber Co. 11 Cire, Dec, 543. (1901.)

The notice to an endorser of a note of its dishonor by the maker
must show upon its face, either expressly or by fair implication, that
it has been presented to the maker and dishonored; but it need not
contain a statement that the endorser is looked to for payment. Such
presentment and dishonor cannot be inferred from a simple statement
that the note is unpaid. Hence, a letter from the holder of two notes,
secured by mortgage, to an endorser stating the terms of the notes;
that one was overdue thirty days and the other would be sixty days
overdue on a certain date; and asking the advice and wish of the en-
dorser as to foreclosure proceedings; that he had written the maker,
but had received no reply; that the endorser was looked to for pay-
ment; that thereafter another letter was addressed to the endorser
‘stating the terms of the notes; that the time allowed had elapsed on
both, and that they wrote to give him notice as endorser, does not
show a sufficient notice of presentment to and demand upon the maker
for payment, and dishonor by him. Sessions & Co. v. Isabel, 14 Dec.
491. (1904.)

3173r (4970) [Place of Presentment.] Presentment for
payment is made at the proper place:

1. Where a place of payment is specified in the instrument
and it is there presented.

2. Where no place of payment is specified, but the ad-
-dress of the person to make payment is given in the instrument
and it is there presented.

3. Where no place of payment is specified and no address
110 OHIO NEGOTIABLE INSTRUMENTS.

is given and the instrument is presented at the usual place of
business or residence of the person to make payment.

4, In any other case if presented to the person to make
payment wherever he can be found, or if presented at his last
known place of business or residence.

Demand of payment of a promissory note, made at an office in
Cincinnati, where the maker received business calls and directed them
to be made (he having no other place of business in the city), is suf-
ficient, though the same office was the place of business of other per-
sons. West v. Brown, 6 Ohio St. 542. (1856.)

Demanding payment of a note payable at “Fostoria, O.,” at the
maker’s late Fostoria residence, is sufficient if the only information
obtainable of his actual residence is not of a certain and positive char-
acter. Wood v. Rosendale, 10 Circ, Dec. 66. (1899.)

A place of payment stated in a note payable on demand does re-
quire demand to be made at such place before action brought against
the maker by the payee. Rigley v. Watts, 8 Circ. Dec, 229 (15 R. 645.)
(1898.)

Words in a promissory note purporting to fix the place of presenta-
tion and demand, as between the payee and maker, do not of them-
selves imply their performance necessary to charge the maker. Ib,

3173s (4971) [Instrument Must be Exhibited.] The in-
strument must be exhibited to the person from whom payment
is demanded, and when it is paid must be delivered up to the

party paying it.

3173t (4972) [Presentment Where Instrument Payable at
Bank.] Where the instrument is payable at a bank, present-
ment for payment must be made during banking hours, unless
the person to make payment has no funds there to meet it at
any time during the day, in which case presentment at any hour
before the bank is closed on that day is sufficient.

A bill of exchange addressed generally to the drawee in a city, may
be accepted payable at a particular bank in the same city and a pre-
sentment for payment may be made at the counter of such bank, with-
out a previous notice to or the assent of the drawer. Myers v. Stan-
dart, 11 Ohio St. 29. (1860.)

For the purpose of fixing the liability of indorsers of commercial
paper payable at a bank, demand of payment may be made at the bank
on the last day of grace at any time within banking hours, and it is not
necessary that such demand be made at the close of banking hours.
Evans v. Lumber Co. 11 Cire. Dec. 543 (21 R. 80.) (1901.)

Where a note is made payable at a bank and the bank officers on
the day it becomes due, after the usual banking hours, deliver it to a
notary informing him that there are no funds in the bank for pay-
PRESENTMENT FOR PAYMENT. 111

ment of the note, it is sufficient proof of demand of payment. Bank
of U. S. v. Carneal, 1 O, F, D. 259. (1829.)

Where a note is payable at a bank, it is not necessary to make any
personal demand upon the maker elsewhere. Ib.

When a note is made payable or negotiable at a bank whose in-
variable usage is to demand payment and give notice on the fourth day
of grace the parties are bound by that usage whether they have per-
sonal knowledge of it or not. Mills v. Bank, 10. F. D. 144. (1826.)

3173u (4973) [Presentment Where Principal Debtor is
Dead.] Where the person primarily liable on the instrument is
dead, and no place of payment is specified, presentment for pay-
ment must be made to his personal representative, if such there
be, and if with the exercise of reasonable diligence, he can be
found.

3173v (4974) [Presentment to Persons Liable as Part-
hers.] Where the persons primarily liable on the instrument are
liable as partners, and no place of payment is specified, present-
ment for payment may be made to any one of them, even though
there has been a dissolution of the firm.

3173w (4975) [Presentment to Joint Debtors.] Where
there are several persons, not partners, primarily liable, on the
instrument, and no place of payment is specified, presentment
must be made to them all.

A demand upon one of three joint and several promisors is suf-
ficient to charge an indorser. Harris v. Clark et al. 10 Ohio 6. (1840.)

31732 (4976) [When Presentment Not Required to Charge
the Drawer.] Presentment for payment is not required in
order to charge the drawer where he has no right to expect or
require that the drawee or acceptor will pay the instrument.

3173y (4977) [When Presentment Not Required to Charge
the Indorser.] Presentment for payment is not required in
order to charge an indorser where the instrument was made or
accepted for his accommodation, and he has no reason to expect
that the instrument will be paid if presented.

31732 (4978) [When Delay in Making Presentment is Ex-
cused.] Delay in making presentment for payment is excused
when the delay is caused by circumstances beyond the control
of the holder, and not imputable to his default, misconduct or
negligence. When the cause of delay ceases to operate, present-
ment must be made with reasonable diligence.
112 OHIO NEGOTIABLE INSTRUMENTS.

W & Co., of Cincinnati, being indebted to H & Son, of Springfield,
‘Ohio, forwarded to the latter, at their request, on Saturday, November
11, their check of that date, drawn on a Cincinnati bank, for the bal-
ance due. The check was received by H & Son at Springfield, by due
course of mail on Monday morning, November 13, and was immedi-
ately negotiated, and mailed on the following day at Springfield, by
the holder, for Cincinnati, to be collected. It was received at Cincin-
nati by course of mail on Thursday morning, November 16, and pre-
sented for payment on the same day: Held, that there was not such
want of reasonable diligence in presenting the check for payment as
‘would discharge the drawers. Werk & Co. v. Bank, 8 Ohio St. 301.
(1858.)

A delay of two days by a deposit bank to present a check to an-
other bank for payment is unreasonable. Honingfort v. Vehmann, 2
Dec. 151.

3174 (4979) [When Presentment May be Dispensed With. ]
Presentment for payment is dispensed with:

1. Where after the exercise of reasonable diligence, pre-
‘sentment as required by this chapter cannot be made.

2. Where the drawee is a fictitious person.

3. By waiver of presentment, express or implied.

Where a note is payable at a future time, but at no particular
place, and the husband, after making the same, abandons his place of
residence, and deserts to some place unknown to the holders, which
they cannot after diligent inquiry ascertain, when it falls due, they
are excused from making a personal demand upon him. In such a
‘case, a personal demand on the wife, with due notice of nonpayment to
the indorser, is the exercise of due diligence, and the indorser is
liable, though there was no personal demand on the husband. McClel-
land v. Bishop, 42 Ohio St. 118. (1884.)

An indorser of a negotiable promissory note is liable to his in-
dorsee, without demand of payment from the maker and notice of non-
‘payment, in cases where the maker is not liable to a bona fide indorsee
‘pefore maturity, and for value. Perkins v. White, 36 Ohio St. 530.
(1881.)

- Where a bona fide indorsee of a negotiable note, after becoming
‘such indorsee, acquires knowledge of a fraud practiced by the payee
‘upon the maker in obtaining the note, which fraud, however, could not
‘be made a defense by the maker against such indorsee, the subsequent
indorsement of the note by him without communicating such knowl-
edge to his indorsee, does not excuse demand and notice in order to
charge the indorser. Ib.

Such conduct on the part of an indorser toward the holder of
negotiable paper, as is calculated to put a person of reasonable pru-
dence off his guard, or to induce him to omit demand or protest, or to
PRESENTMENT FOR PAYMENT. 113

give notice of dishonor, will dispense with the necessity of taking
these steps. Boyd v, Bank, 32 Ohio St. 526. (1877.)

The owner and holder of a negotiable promissory note, at the
time of its transfer by him to the party named, indorsed thereon the
following: “I guarantee the payment of the within note to C. Edger-
ton, or order. Isaac Clay:” Held, this was an absolute and uncondi-
tional guaranty, and no averment in the petition of demand and no-
tice is requisite to make a prima facie case for recovery upon it. Clay
et al. v. Edgerton, 19 Ohio St. 549. (1869.)

In case of guaranty, demand of payment of the principal debtor,
and notice of his default, are requisite to charge the guarantor only,
where the fact on which his liability is made dependent rests pe-
culiarly within the knowledge of the guarantee, or depends on his
option. Bashford v. Shaw, 4 Ohio St. 263. (1854.)

But where the contingency which determines the liability of a
guarantor, is one which is known to him, or which he is bound to
know, or where each party has, in legal contemplation, equal means of
information, the guarantor must take notice at his peril. Ib.

If one bound to pay refuses to do so, that excuses a demand and
tender of performance by ‘the person entitled to receive. Watson v.
Dun, Wright 741. (1834.)

The act of 1820 does not dispense with notice to an indorser of a
negotiable note, though as to some paper, it may prescribe what shall
be due diligence in making a demand of the maker. Frazier v. John-
ston, Wright 131. (1832.)

Presentment to and demand upon the maker of a note for payment,
and notice of dishonor to an endorser may be waived by the latter,
either verbally or in writing. Such waiver may result from the acts,
course of conduct, or language which induces the maker not to take
such steps, and which is of such character as to put him off his guard
and prevent him from treating the note as he would otherwise have
done; or it may result from implication, usage, or any understanding
between the parties which is sufficient to satisfy the mind of a pru-
dent person that the waiver is intended. Hence, where it is clearly
to be inferred that the holder of the note was proceeding against the
maker and living endorser in accordance with the wishes of the
personal representative of a deceased endorser, in order to ascertain
‘the final liability of the deceased endorser’s estate; that such repre-
sentative was notified from time to time of the progress of the suit,
and finally of its termination; that no judgment was sought against
the estate until the ultimate liability was ascertained; under such
circumstances the necessity of presentment, demand and notice of
dishonor at maturity will be held to be waived. Sessions & Co. v.
Isabel, 14 Dec. 492. (1904.)

3174a (4980) [When Instrument Dishonored by. Nonpay-
ment.] The instrument is dishonored by non-payment when:

8
114 OHIO NEGOTIABLE INSTRUMENTS.

1. It is duly presented for payment and payment is re-
fused or cannot be obtained; or,

2. Presentment is excused and the instrument is overdue
and unpaid,

3174b (4981) [Liability of Person Secondarily Liable,
When Instrument Dishonored.] Subject to the provisions of
this chapter, when the instrument is dishonored by non-payment,
an immediate right of recourse to all parties secondarily liable
thereon accrues to the holder.

A contract written and signed by the endorser at the time of the
indorsement, upon the back of a negotiable promissory note, in these
words: “I guarantee the collection of the within note,” is a guaranty
that the note will be collectible at maturity by the ordinary process of
law. Stone v. Rockefeller, 29 Ohio St. 625. (1876.)

To fix the liability of the guarantor, under such a guaranty, it is
usually necessary to prosecute the maker, to judgment, and a return
of ‘no property;” but this extreme test will not be required where the
maker, at the maturity of the note, is insolvent and without any prop-
erty subject to execution. Stone v. Rockefeller, 29 Ohio St. 625.
(1876.)

Where the undertaking of the party is to guarantee the payment
of the note of another, after final process, the prosecution of the claim
to final process against the maker of the note is essential in order to
charge the guarantor. Bashford v. Shaw, 4 Ohio St. 263. (1854.)

An omission to bring suit against the original debtor, within rea-
sonable time, will not discharge the guarantor from liability, where
the terms of the guaranty do not prescribe the degree of diligence to
be used in the proceeding, by suit, and where, in consequence of the
continued insolvency of the principal debtor from the time of the ma-
turity of the debt, the guarantor suffered no loss by the delay. Ib,

The holder is not bound to follow the “principal debtor” out of the
jurisdiction of the state to recover judgment against him and make
the amount due by execution before proceeding against the surety.
Bostwick v. Bank, 6 Cire. Dec. 682 (13 R. 675).

Where a payee has no knowledge that one of the assigners is a
surety only, he may sue both as principals. Cone v. Rees, 5 Circ. Dec,
192 (11 R. 682). (1896.)

Where the maker of a note has left the state, or cannot be reached
by process, the creditor need not go out of the state to pursue him but
may proceed against any party liable on the obligation who is within
the jurisdiction of the court. Colver v. Wheeler, 5 Circ. Dec. 278 (11
R. 604). (1895.)

One who holds a guaranty of the collectibility of a claim secured
by mortgage must exhaust the mortgage security before proceeding
against the guarantor. Timmerman v, Howell, 1 Circe, Dec. 342 (2 R.
27). 1886.)
PRESENTMENT FOR PAYMENT. 115

3174c (4982) [Time of Maturity.] Every negotiable in-
strument is payable at the time fixed therein without grace.
‘When the day of maturity falls upon Sunday, or a holiday, the
instrument is payable on the next succeeding business day. In-
struments falling due on Saturday are to be presented for pay-
ment on the next succeeding business day, except that instru-
ments payable on demand may, at the option of the holder, be
presented for payment before twelve o’clock noon on Saturday

when that entire day is not a holiday.

The time of payment, as fixed by a note, may be controlled by a
separate written agreement made and entered into by the parties at
the time of the execution of the note. Jacobs v. Mitchell, 46 Ohio St.
601. (1889.) ,

A made and delivered to B his promissory note for the payment
of a certain sum of money thirteen months after date. They also, con-
currently therewith, made and entered into a separate written agree-
ment, that the note should not become due and payable until C (for
whom B was acting as agent) should sell for A a certain number of
bushels of oats at a certain price: Held, that an action on the note
cannot be maintained until the terms of the concurrent written agree-
ment have been complied with; and, further, that such is the rule in
an action by a holder, who acquired his title with notice of the agree-
ment. Ib.

For the purpose of demand and notice to charge indorsers, a series
of notes due at specified periods, and secured by mortgage, are to be
deemed due according to their terms, irrespective of such stipulation
in the mortgage. McClelland v. Bishop, 42 Ohio St. 113. (1884.)

Where a certificate of deposit was negotiated, two days after its
date, to a party receiving it in good faith, for a valuable consideration,
it will not be regarded as overdue, at the time. A reasonable time
must have elapsed for the purpose of negotiation, or presentment for
payment, before it will be regarded as overdue. The assignee, in such
case, can enforce payment of the note by the maker, and the latter is,
therefore, not liable to an attaching creditor of the depositor under
Sec. 205 of the code. Stone v. Elliott, 11 Ohio St, 252, approved and
followed. Howe v. Hartness, 11 Ohio St. 449. (1860.)

Days of grace enter into the contract, and a note entitled to days
of grace, made after the passage of an act abolishing days of grace, but
before it went into effect though payable after the act takes effect, is
not affected by the act. Evans v. Lumber Co. 11 Cire. Dec. 543 (21
R. 80). (1901.)

An act has no force until it goes into effect, and a note entitled to
days of grace, made after the passage of an act abolishing days of
grace but before it goes into effect, is not affected by the act. Ib.
116 OHIO NEGOTIABLE INSTRUMENTS.

3174d (4983) [Time; How Computed.] Where the instru-
ment is payable at a fixed period after date, after sight, or after
the happening of a specified event, the time of payment is
determined by excluding the day from which the time is to begin
to run, and by including the date of payment.

Time, in cases of demand and notice, is reckoned, it seems, by cal-
endar months. McMurchey v. Robinson, 10 Ohio 496. (1841.)

3174e (4984) [Rule Where Instrument Payable at Bank.]
Where the instrument is made payable at a bank, it is equivalent
to an order to the bank to pay the same for the account of the
principal debtor thereon.

If a note is made payable at a designated bank for the convenience
of the maker, with no objection by the payee to the place of payment,
and is indorsed and delivered by the payee to another bank as collat-
eral security for the payee’s own note, and if the collateral paper falls
due before the principal debt, it is the duty of the receiver of the col-
lateral, in the absence of any sufficient reason to doubt the solvency of
the designated bank, to lodge it with such bank for collection. Bridge
Co. v. Bank, 46 Ohio St. 224. (1889.)

The duty of a banker is to pay the checks and bills of his cus-
tomers drawn payable to order, to the person who becomes holder by
a genuine indorsement; and he cannot charge him with payments
made otherwise, unless the circumstances amount to a direction from
the customer to the banker to pay the paper without reference to the
genuineness of the indorsement, or are equivalent to a subsequent ad-
mission that the indorsement is genuine, in reliance on which the
banker is induced to alter his position. Dodge v, Bank, 20 Ohio St.
234. (1870.)

When a note is made payable to a bank and signed by a surety,
presented to the bank for discount and refused, and afterward dis-°
counted by a third person, without the knowledge of the surety, an
action will not lie at the suit of the bank, for the use of the person dis-
counting the note, against the surety. Clinton Bank v, Ayres, 16 Ohio
283. (1847.) A

Such an action will lie against the principal in the note, if sued
separately. Ib.

Where collateral is left with a bank as security for payment of a
note, the bank cannot, upon renewing the note, credit the collateral
against both the new note and the other indebtedness of the maker to
it without the maker’s knowledge or consent that the collateral is to be
used as security for the other indebtedness, nor can the bank avail it-
self of the doctrine of set-off. Meyers, In re, 10 Dec. 121. (1900.)

Where a person gives a note making it payable at a particular
bank at which he is a general depositor, the bank has authority to pay
PRESENTMENT FOR PAYMENT. 117

it upon presentation and demand when due out of any funds of the
maker, Francis v. Bank, 3 Dec. 383 (1 N. P. 281). (1895.)

8174f (4985) [What Constitutes Payment in Due Course. ]
Payment is made in due course when it is made at or after the
maturity of the instrument to the holder thereof in good faith
and without notice that his title is defective.

The surrender of a promissory note to the maker, upon receiving
in payment thereof a new note, the signatures to which were supposed
to be genuine by the payee, but one or more of which were forged,
does not operate as payment of the original note, nor extinguish the
right of action thereon. Emerine v. O’Brien, 36 Ohio St. 491. (1881.)

Where a bank in this state receives for collection a draft payable
in New York, and for the same purpose forwards the draft to its corre-
spondent in New York, the bank here is responsible to the owner for
the conduct of such correspondent and for the proceeds of the draft,
immediately upon its collection by such correspondent. Such corre-
spondent is the agent of the bank here, and not the sub-agent of the
owner of the draft; and payment to the agent is payment to the bank,
unless there was some agreement or authority between the owner and
the bank beyond the mere fact of the draft being received for collection.
If, before the draft is collected, the bank here becomes insolvent, its
agency may be revoked, and the agent of the bank made, by notice or
otherwise, the agent of the owner of the draft, and chargeable to the
owner with the proceeds of the draft afterward collected. But if the
bank here becomes insolvent after the draft is collected by the agent,
and if, before such insolvency, various sums are collected by the agent
on drafts forwarded to him for collection, and various sums are paid
to the bank on such collections before insolvency, and after the in-
solvency a part of the funds remaining from such collections in the
hands of the agent is paid over to the assignee of the insolvent bank,
the owner of such draft has no such specific lien or claim upon the
funds in the hands of the assignee as to give him a preference over
creditors of the insolvent bank. Reeves v, State Bank, 8 Ohio St.
466. (1858.)

Payment made on a negotiable note before due or negotiated, will
avail, if the indorsee had notice of it when he took it; but without
such notice, the maker loses, because he neglects the indorsement of
the payment, and enables the holder to pass it away at its face. Chap-
pell v. Phillips, Wright 373. (1833.)

Where a negotiable promissory note is not, at its maturity, in the.
hands of the payee whose endorsement appears thereon, the maker
may proceed upon the assumption that it has been transferred, and
make payment to the holder. Bode v. Werner, 16 Circ, Dec. 206.
1902.)
118 OHIO NEGOTIABLE INSTRUMENTS.

Re-Subdivision 7.
NOTICE OF DISHONOR.

3174g (4986) [To Whom Notice of Dishonor Must be
Given.] Exceptwas herein otherwise provided, when a negotiable
instrument has been dishonored by non-acceptance or non-pay-
ment, notice of dishonor must be given to the drawer and to
each indorser, and any drawer or indorser to whom such notice
is not given is discharged.

A waiver of demand of payment at the maturity of a note is also
a waiver of notice of nonpayment. Dye v. Scott, 35 Ohio St. 194.
(1878.)

The owner and holder of a negotiable promissory note, at the time
of its.transfer by him to the party named, indorsed thereon the follow-
ing: “I guarantee the payment of the within note to C. Edgerton or
order. Isaac Clay:” Held, this was an absolute and unconditional
guaranty, and no averment in the petition of demand and notice is
requisite. to make a prima facie case for recovery upon it. Clay v.
Edgerton, 19 Ohio St. 549. (1869.)

The drawer of a negotiable bank check is not discharged from
liability by the delay of the holder to make presentment and give no-
tice o£ dishonor, unless he has suffered loss thereby, and then only
pro tanto. If the drawee remains solvent and the fund upon which
the check is drawn is unaffected by the delay, the liability of the
drawer continues, ordinarily, in full force. And a bona fide holder
for value, is not affected by secret equities existing between antecedent
parties. Stewart v. Smith, 17 Ohio St, 82. (1866.)

Where the payee of a negotiable promissory note transfers the
same, before maturity, by indorsement, with a special guaranty of its
collectibility by due process of law, a failure to demand payment of
the makers at maturity, and to give notice of nonpayment, will not
discharge the guarantor from liability. He is not entitled to notice,
until the default occurs upon which his liability depends, unless the
terms of the guaranty provide otherwise. Forest v. Stewart, 14 Ohio
St. 246. (1863.)

Under the averment in a declaration of due demand and notice of
the dishonor of a bill of exchange, the declarations of the defendant
showing an acknowledgment of liability upon, and a promise to pay
the amount of the bill, are admissible in evidence. Myers y. Standart,
11 Ohio St. 29. (1860.)

Where the indorser in blank of a promissory note executes a mort-
‘gage to the indorsee, conditioned that the mortgagor shall pay or cause
to be paid the said note to the mortgagee at maturity, the lien of such
mortgage will not be discharged by the failure of the mortgagee to
wake such demand and give such notice of nonpayment as would be
NOTICE OF DISHONOR. 119

necessary to charge the indorser personally. Hilton v. Catherwood,
10 Ohio St, 110. (1859.)

The indorsement of a note, not negotiable, is not an original un-
dertaking between the indorser and indorsee; but it is collateral, and
payment must be demanded and notice given to the indorser, as upon
negotiable paper. Parker v. Riddle, 11 Ohio 102. (1841.)

The indorsement of a note, not negotiable, by a person not a party
to it, is a guaranty and upon such guaranty, demand of payment must
be made when the note becomes due, and notice given to the indorser
before suit. Ib,

Where a variety of facts are given in evidence, tending to prove
notice to charge an indorser, the court should not set aside the ver-
dict upon mere difference of opinion with the jury. Remington v.
Harrington, 8 Ohio 508. (1838.)

Where notice to an indorser is the question in issue, the facts of
the res gestae may properly be given in evidence, though no one proves
the actual fact of notice, separate from its connection with others. Ib.

Accommodation drawers, who unite as drawers with the person
for whose accommodation they draw, are entitled to notice of non-
payment if they had reason to expect their principal would provide
funds to meet the bill. Miser v, Trovinger, 7 Ohio St. 281. (1857.)

Where a notary in sending notice of dishonor to last indorser en-
closes notices to all prior indorsers, it is the duty of such last indorser
to forward such notices to the persons to whom they are addressed.
Henry v. Spengler, 5 Circ. Dec, 362 (12 R. 153). (1896.)

An indorser cannot be held liable where there is no evidence to
show that he had received notice of the dishonor of the note. Ib.

An assignment to the indorser in trust for the general creditors
sufficient only to pay a small portion of the maker’s debts, although
including all the maker’s property, does not dispense with the neces-
sity of notice to such indorser. Woodbury v. Crum, 3 O. F. D. 531.
(1859.)

Maker’s transfer of property to the indorser to pay the debt, ren-
ders notice to the indorser unnecessary if the property thus transferred
is sufficient to pay the debt, but not otherwise. Ib.

While the same strictness is not required in giving notice of dis-
honor to a guarantor that is required in the case of an indorser, still
notice to the guarantor within a reasonable time after the note be-
comes dishonored is indispensable. Dunbar v. Brown, 2 O, F. D. 460.
(1846.)

8174h (4987) [By Whom Given.] The notice may be given
by or on behalf of the holder, or by or on behalf of any party
to the instrument who might be compelled to pay it to the
holder, and who, upon taking it up, would have a right to reim-
bursement from the party to whom the notice is given.

31747 (4988) [Notice Given by Agent.] Notice of dis-
120 OHIO NEGOTIABLE INSTRUMENTS.

honor may be given by an agent either in his own name or in
the name of any party entitled to give notice, whether that party
be his principal or not.

31747 (4989) [Effect of Notice Given on Behalf of Holder.]
Where notice is given by or on behalf of the holder, it enures
for the benefit of all subsequent holders, and all prior parties
who have a right of recourse against the party to whom it is
given.

8174k (4990) [Effect Where Notice is Given by Party
Entitled Thereto.] Where notice is given by or on behalf of a
party entitled to give notice, it enures for the benefit of the
holder and all parties subsequent to the party to whom notice is
given.

31741 (4991) [When Agent May Give Notice.] Where the
instrument has been dishonored in the hands of an agent, he
may either himself give notice to the parties liable thereon or he
may give notice to his principal. If he give notice to his princi-
pal he must do so within the same time as if he were the holder,
and the principal upon the receipt of such notice has himself
the same time for giving notice as if the agent had been an in-

dependent holder.

Where a promissory note, in the hands of an agent for collection,
is dishonored at maturity by the maker, it is the duty of the agent to
take the usual and proper action required to charge the indorsers, and
if by reason of his neglect in this respect, an indorser is discharged,
the agent becomes liable to his principal for the resulting damages.
Bank v. Bank, 49 Ohio St. 351. (1892.)

3174m (4992) [When Notice Sufficient.] A written notice
need not be signed, and an insufficient written notice may be
supplemented and validated by verbal communication. A mis-
description of the instrument does not vitiate the notice unless
the party to whom the notice is given is in fact misled thereby.

When the notice to an indorser is in writing and undisputed, its
sufficiency is a question of law, to be determined exclusively by the
court. It need not contain a statement that the indorser is looked to
for payment; but it must show upon its face, either expressly or by
fair implication, that the note or bill has been duly presented to the
maker or acceptor, and dishonored. Townsend v. Lorain Bank, 2 Ohio
St. 345. (1853.)

In a suit by an indorser against the maker of a promissory note,
the question of due diligence, where the facts are not disputed, is one
of law to be decided by the court. Davis v. Herrick, 6 Ohio 55. (1833.)
NOTICE OF DISHONOR. 121

A justice of the peace in Mississippi may make demand and pro-
test and give notice. Austin v, Miller, 2 0. F. D. 709. (1850.)

3174n (4993) [Form of Notice.] The notice may be in
writing or merely oral, and may be given in any terms which
sufficiently identify the instrument, and indicate that it has been
dishonored by non-acceptance or non-payment. It may in all
cases be given by delivering it personally or through the mails.

Presentment and dishonor cannot be inferred from a simple state-
ment that the paper is unpaid; or from a notice showing it to have
been protested before it was due. Townsend y. Lorain Bank, 2 Ohio
St. 345. (1853.)

It is not necessary in a letter to the indorser, stating demand and
dishonor of the note, also to inform the indorser that he is looked to
for payment, but where such notice is sent, it necessarily implies that
the holder looks to the indorser for payment. Bank of U. S. v. Carneal,
10. F. D. 259. (1829.)

It is not necessary that notice of protest should contain a formal
allegation that demand was made at the place where the note was pay-
able; it is sufficient if it state the fact of non-payment of the note and
that the holder looks to the indorser for indemnity. Mills v. Bank,
10. F. D. 144. (1826.)

No precise form of notice of protest is necessary and it is not
necessary that it state who is the holder of the note nor will a mistake
in the date of the note vitiate it if it convey to the party a sufficient
knowledge of the particular note which has been dishonored and vari-
ances are not material if they do not mislead. Ib.

31740, (4994) [To Whom Notice May be Given.] Notice
of dishonor may be given either to the party himself or to his

agent in that behalf.

Notice of dishonor to the indorser left with a boarder at the house
where the indorser boards, with a request to hand it to the indorser, is
sufficient. United States Bank v. Hatch, 1 O. F. D, 312. (1830.) Ib.
10. F. D. 399. (1832.)

3174p (4995) [Notice Where Party is Dead.] When any
party is dead and his death is known to the party giving notice,
the notice must be given to a personal representative, if there
be one, and if with reasonable diligence he can be found. If
there be no personal representative, notice may be sent to the
last residence or the last place of business of the deceased,

3174q (4996) [Notice to Partners.] Where the parties
to be notified are partners, notice to any one partner is notice to
the firm even though there has been a dissolution.
122 OHIO NEGOTIABLE INSTRUMENTS.

3174r (4997) [Notice to Persons Jointly Liable.] Notice
to joint parties who are not partners must be given to each of
them unless one of them has authority to receive such notice for
the others.

Notice of non-payment, or what is tantamount to notice, to one
joint drawer, is not to be deemed notice to the other drawers, unless
all are partners. Miser v, Trovinger, 7 Ohio St. 281. (1857.)

3174s (4998) [Notice to Bankrupt.] Where a party has
been adjudged a bankrupt or an insolvent, or has made an as-
signment for the benefit of creditors, notice may be given either
to the party himself or to his trustee or assignee.

8174¢ (4999) [Time Within which Notice Must be Given.]
Notice may be given as soon as the instrument is dishonored;
and unless delay is excused as hereinafter provided must be
given within the times fixed by this chapter.

The drawer of a negotiable bank check is not discharged from lia-
bility by the delay of the holder to make presentment and give notice
of dishonor, unless he has suffered loss thereby, and then only pro
tanto. If the drawee remains solvent and the fund upon which the
check is drawn is unaffected by the delay, the liability of the drawer
continues, ordinarily, in full force. And a bona fide holder for value
is not affected by secret equities existing between antecedent parties.
Stewart v. Smith, 17 Ohio St. 82. (1866.)

What constitutes due diligence in giving notice to the drawer or
indorser of commercial paper, of the dishonor of the same, when the
facts are ascertained or admitted, is a question of law; and it cannot
properly be submitted to the jury as a question of fact. Walker v.
Stetson, 14 Ohio St. 89. (1862.)

On a bill drawn March 20th, due at four months, a demand and
notice on the 22nd is not good. McMurchey v. Robinson, 10 Ohio 496.
(1841.)

A demand of the maker of a negotiable note, and notice on the
ninth day after the note arrived at maturity, is not the use of due dili-
gence to charge an indorser. Davis v. Herrick, 6 Ohio 55. (1833.)

3174u (5000) [Where Parties Reside in Same Place.]
Where the person giving and the person to receive notice reside
in the same place, notice must be given within the following
times:

1. If given at the place of business of the person to receive
notice, it must be given before the close of business hours on

,

the day following-- Vat Rate ge
NOTICE OF DISHONOR. 123

2. If given at his residence, it must be given before the
usual hours of rest on the day following.

3. If sent by mail, it must be deposited in the postoffice in
time to reach him in usual course on the day following.

The question of diligence in serving notice of dishonor is one for
the jury. Lenhart v. Ramey, 2 Cire. Dec. 77 (3 R. 135). (1888.)

If the parties to a note or bill reside in the same town or city,
notice of dishonor must be either personally served or by leaving a
written notice at the indorser’s dwelling house or place of business.
Williams v, Bank, 1 O. F. D. 206. (1829.)

Where a notary called at the house of the indorser which he found
shut up and the door locked and on inquiry of the nearest resident he
was informed that ‘the indorser and family had left town on a visit;
whether for a day, week or month he did not know,” and made no fur-
ther effort to ascertain where the indorser had gone, but left the notice
at the adjoining house, requesting that it be handed to the indorser
when he returned, it is sufficient diligence; and notice through the
postoffice was not necessary. Ib.

3174v (5001) [Where Parties Reside in Different Places.]
Where the person giving and the person to receive notice reside
in different places, the notice must be given within the following
times:

1. If sent by mail, it must be deposited in the postoffice in
time to go by mail the day following the day of dishonor, or if
there be no mail at a convenient hour on that day, by the
next mail thereafter.

2. If given otherwise than through the postoffice, then
within the time that notice would have been received in due
course of mail if it had been deposited in the postoffice within
the time specified in the next preceding paragraph of this sec-
tion.

Notice of non-payment of such note, addressed to the indorser at
his place of residence out of the city, and put into the postoffice by 9
o’clock A, M. on the next day after its dishonor, is sufficient, although
the mail for the indorser’s place of residence was by the regulations
of the postoffice closed daily at 5 o’clock A. M. West v. Brown, 6 Ohio
St. 542. (1856.)

The holder of a bill of exchange in order to charge an indorser re-
siding in another state or place, adopting the mail as the means of
conveying the notice of the dishonor of the bill, may send the notice
by the mail of the day of the default, but if not, he must deposit the
notice, directed to the indorser, in the postoffice in time to be sent by
the mail of the day next after the day of the dishonor, unless the mail
of that day be made up and closed at an unreasonably early hour, or
124 OHIO NEGOTIABLE INSTRUMENTS.

in other words, before early business hours, and if there be no mail
of that day, or the mail of that day be closed at an unreasonably early
hour, then by the next practicable mail. Lawson v. Farmers’ Bank,
1 Ohio St. 206. (1853.)

Where a bill was protested in the city of Pittsburg on July 27,
and the departure of the only mail of the next day to the place of the
residence of the indorser was 10 o’clock, A, M., the time of the closing
of the mail being ten minutes after 9 o’clock, and not before convenient
early business hours, the holder does not use due diligence if he neg-
lects to send the notice of dishonor by that mail. Ib.

Where a bill of exchange was protested for non-payment in New
York, and the agent of the holder by the next mail sent notice of pro-
test to the drawer, who resided at Ripley, Ohio, under cover to the
holder at Cincinnati, who sent the notice to the drawer by the next
mail: Held, that the notice was sufficient to charge the drawer. Ohio
Insurance Co. v. McCague, 18 Ohio 54. (1849.)

Indorser resided in the county, nine miles from the city, and
spent part of his time in the city, receiving letters and messages at a
particular place in the route of a letter carrier, and proof that notice
of non-payment by the maker was put into the postoffice of the city,
directed to the indorser. Verdict for the plaintiff; new trial denied,
though no proof given by the plaintiff that the city postoffice was the
nearest to the defendant. Gist v. Lybrand, 3 Ohio 307. (1828.)

Where note falls due on Saturday in a city having no postal de-
livery and the notary being unable to get admittance to indorser’s
house, he being away from home, mailed the notice and it was received
‘Luesday, this is due diligence. Lenhart v. Ramey, 2 Cire. Dec, 77 (3
R. 135). (1888.)

Where the facts are disputed, the question of diligence of a notary
in giving notice is one for the jury to determine under instructions of
the court. Ib.

The question of diligence in serving notice of dishonor is one for
the jury to determine under instructions from the court. Ib.

3174w (5002) [When Sender Deemed to Have Given Due
Notice.] Where notice of dishonor is duly addressed and de-
posited in the postoffice, the sender is deemed to have given due
notice, notwithstanding any miscarriage in the mails.

What constitutes due diligence in giving notice to the drawer of
commercial paper, of the dishonor of the same, when the facts are as-
certained or admitted, is a question of law; and it cannot properly be
submitted to the jury as a question of fact. Walker v. Stetson, 14 Ohio
St. 89. (1862.)

A notice sent through the postoffice should be directed to the party
at his residence or place of business, if either is known to the holder,
or, upon diligent inquiry, can be ascertained; and, if neither are
known nor can be found, the law dispenses with any notice whatever.
NOTICE OF DISHONOR. 125

While this is the general principle, the spirit of the rule is, that the
notice should be sent to Such place as that it will be most likely,
promptly, to reach the person for whom it is intended; and it is suffi-
cient if notice is sent to the postoffice where the party usually receives
his letters, although not that of his residence, as well as that where he
resides; and, in all cases, the notice may be sent to the place pointed
out by the drawer or indorser; and, in general, will be sufficient, both
in reference to himself ‘and parties who stand behind him on the paper.
Tb.

When a law (Sec. 120, Rev. Stat.) makes the certificate of protest
prima facie evidence of the facts therein certified and provides that due
Mailing of notice to the proper postoffice, properly directed, the mere
fact that such notice does not reach the indorser will not rebut the
statement of the certificate. Liggett v. Wing, 1 Dec. 277 (31 Bull.
85). (1894.)

If notice of dishonor has been duly mailed, the indorser is not re-
lieved, though such notice is never received by him. Ib.

Reasonable effort to give notice of dishonor is sufficient, as by let-
ter addressed so as to denote the locality of the residence although
there is no postoffice at such place and the letter is not received, if
letters thus addressed ordinarily are received. Luckett v. Goodrich,
9 Re, 328. (1883.)

3174x% (5003) [Deposit in Postoffice; What Constitutes. ]
Notice is deemed to have been deposited in the post-office when
deposited in any branch postoffice or in any letter box under the
control of the postoffice department.

3174y (5004) [Notice to Subsequent Party; Time Of.]
Where a party receives notice of dishonor, he has, after the re-
ceipt of such notice, the same time for giving notice to ante-
cedent parties that the holder has after the dishonor.

Where a promissory note, successively indorsed by more than one,
is dishonored by the maker, the holder thereof may select any one of
the indorsers whom he may wish to charge with liability, and notify
him only; but if he passes by one or more of the later indorsers, and
gives notice to an earlier one, he is not for that reason entitled to any
longer time, within which to give the notice, than he would have had
to notify his immediate indorser. Bank v, Bank, 49 Ohio St. 351.
(1892.)

After an agent to whom a bill is sent for collection has given notice
to the principal, the same time thereafter is allowed to the principal
for giving notice to the indorser as if he had himself been an indorser
receiving notice from the holder. Lawson v. Farmers’ Bank, 1 Ohio
St. 206. (1853.)

The holder of a bill is not bound to give notice of the dishonor to
any more than his first immediate indorser. And each party to a bill
126 OHIO NEGOTIABLE INSTRUMENTS.

has the same time for giving notice to parties prior to him that the
holder has. Ib.

An indorser cannot be held liable where there is no evidence to
show that he had received notice of the dishonor of the note. Henry
v. Spangler, 5 Circ, Dec. 362. (1896.)

31742 (5005) [Where Notice Must be Sent.] Where a
party has added an address to his signature, notice of dishonor
must be sent to that address; but if he has not given such ad-
dress then the notice must be sent as follows:

1. Either to the postoffice nearest to his place of residence,
or to the postoffice where he is accustomed to receive his letters;
or,

2. If he live in one place, and have his place of business in
another, notice may be sent to either place; or,

3. If he is sojourning in another place, notice may be sent
to the place where he is so sojourning.

But where the notice is actually received by the party with-
in the time specified in this chapter it will be sufficient though
not sent in accordance with the requirements of this section.

The fact that a drawer or indorser goes from his place of residence
or business to a distant city to dispose of property, which occupies him
there for three weeks of time, does not, in the absence of all explana-
tion as to his mode of doing business, or of his relation to the postoffice
there, make such city his place of business within the meaning of the
commercial rule upon the subject of directing notice. Walker v. Stet-
son, 14 Ohio St. 89. (1862.)

3175 (5006) [Waiver of Notice.] Notice of dishonor may
be waived either before the time of giving notice has arrived or
after the omission to give due notice, and the waiver may be

express or implied.

On January 16, 1877, G executed to B, or order, his promissory
note payable one day after date, with interest. On March 9, 1877, B
indorsed and delivered the note to M. At the time of indorsement, it
was mutually agreed between the indorser, indorsee, and maker, that
the maker should have an extension of time in which to pay the note,
“to about the first of April, 1877:” Held, that the indorser waived
demand, and notice of non-payment of the note. McMonigal v. Brown,
45 Ohio St. 499. (1888.) é

In the transfer of an instrument by indorsement, demand and no-
tice may be waived, and such waiver may be shown by the circum-
stances: Where, at the time of the transfer of a past due note, both
indorser and indorsee are informed by the maker that he is not then
NOTICE OF DISHONOR. 127

able, on demand, to pay it but thinks he may be able to pay it in thirty
days, and the note is then delivered, it will be presumed the parties
acquiesced in the delay, and that demand and notice of non-payment
‘were waived. Hudson v. Wolcott, 39 Ohio St, 618. (1884.)

Oral testimony is admissible to prove that the indorser, as be-
tween himself and the indorsee, at the time of indorsing a note in
blank, waived demand and notice. Dye v. Scott, 35 Ohio St. 194.
(1878.)

A waiver of demand of payment at the maturity of a note is also a
waiver of notice of non-payment. Ib.

The drawers of a bill, being partners, dissolved their partnership
after the maturity and protest of the bill, but gave no notice thereof to
the payees of the bill. Some time after the dissolution the agent of
the payees called on one of the partners for settlement of the bill,
who referred him to another, and by him declarations were made, that,
although there had been a defect in the mode of giving notice, which
discharged the drawers, they would not take advantage of it, but
would settle when they were satisfied nothing could be made from the
acceptors. The acceptors were wholly insolvent, and the action was
not brought on the bill until after a considerable lapse of time. On
the trial the other partners objected to the admission in evidence of
the declarations: Held, that they were properly admitted in evidence,
as showing that there had been due notice of dishonor of the bill, and
charging all the partners with liability thereon. Myers v. Standart,
11 Ohio St. 29. (1860.)

An indorser of a promissory note may, by special agreement, waive
notice of demand and non-payment. Kyle v. Green, 14 Ohio 491.
1846.)

If the indorser contract with the indorsee that he will be respon-
sible for the payment of the note, if the maker prove unable to pay it,
after being prosecuted and his property exhausted, an action may be
sustained against the indorser without proof of notice that the maker
has failed to pay. Ib.

An indorsement “with recourse” does not waive demand and notice.
Newcomer v. Hollingworth, Ohio Dec. (Dayt.) 277. (1872.)

An indorsement “Notice of presentment, demand and protest
waived” is not only a waiver of demand of payment, but of notice of
non-payment to indorser at maturity of the note. Seymour v. Fran-
cisco, 4 Re, 9.

3175a (5007) [Whom Affected by Waiver.] Where the
waiver is embodied in the instrument itself, it is binding upon
all parties; but where it is written above the signature of an
indorser, it binds him only.

3175b (5008) [Waiver of Protest.] A waiver of protest
whether in the case of a foreign bill of exchange or other negoti-
128 OHIO NEGOTIABLE INSTRUMENTS.

able instrument, is deemed to be a waiver not only of a formal
protest, but also of presentment and notice of dishonor.

3175¢e (5009) [When Notice is Dispensed With.] Notice
of dishonor is dispensed with when, after the exercise of reason-
able diligence, it cannot be given to or does not reach the parties
sought to be charged.

Where a note fell due. on Saturday in a city having no postal de-
livery, and the notary, being unable to get admittance to the endorser’s
house, he being away from home, mailed the notice and it was re-
ceived Tuesday, this is due diligence. Lenhart v. Ramey, 2 Circ. Dec.
77 (8°R. 185). (1888.)

A reasonable effort on the part of the holder to give notice of pro-
test to the indorser is all the law requires. A notice at his place of
business or residence is sufficient, whether he is there or not. Burck-
hardt v. Bank, 6 Re. 1036. (1881.)

If parties entitled to notice of dishonor are absent from the state
and have left no agent to receive such notice, or if such party has ab-
sconded or has no place of residence which by reasonable diligence
can be discovered, notice is not necessary. Williams v, Bank, 1 O, F.
D. 206. (1829.)

8175d (5010) [Delay in Giving Notice; How Excused.]
Delay in giving notice of dishonor is excused when the delay
is caused by circumstances beyond the control of the holder,
and not imputable to his default, misconduct or negligence.
When the cause of delay ceases to operate, notice must be given
with reasonable diligence.

3175e (5011) [When Notice Need Not be Given to
Drawer.] Notice of dishonor is not required to be given to the
drawer in either of the following cases:

1, Where the drawer and drawee are the same person.

2. Where the drawee is a fictitious person or a person not
having capacity to contract.

8. Where the drawer is the person to whom the instrument
is presented for payment.

4, Where the drawer has no right to expect or require that
the drawee or acceptor will honor the instrument.

5. Where the drawer has countermanded payment.

The drawer of a bill, who has no assets in the hands of the drawee,
and has no reason to expect that the drawee will be provided with
funds to pay the bill, or will pay it, is a fraudulent drawer, and is not
entitled to notice of nonpayment. Miser v. Trovinger, 7 Ohio St.
281. (1857.)
NOTICE OF DISHONOR. 129

3175f (5012) [When Notice Need Not be Given to In-
dorser.] 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 instru-
ment is presented for payment.

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

Where an indorser of a promissory note is fully indemnified for
the indorsement, the indorsee may maintain an action against him,
‘without proof of demand and notice. Develing v. Ferris, 18 Ohio 170.
(1849.)

Indorsers to whom notice of non-payment had not been given, on
the ground that they had been secured by a deed of trust made to in-
demnify them as such indorsers, cannot be relieved in equity on the
ground that a subsequent equitable decree deprived them of their in-
demnity. McCoy v. Bank, 5 Ohio 548. (1832.)

Where a person (not a party) writes his name on the back of a
note at the time of its execution and delivery, he is not entitled to de-
Mand and notice. Colver v. Wheeler, 5 Circ. Dec. 278. (1895.)

3175g (5013) [Notice of Non-Payment Where Acceptance
Refused.] 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.

8175h (5014) [Effect of Omission to Give Notice of Non-
Acceptance.] 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. Rete, Eb ee Rh

31754 (5015) [When Protest Need Not be Made; When
Must be Made.] Where any negotiable instrument has been
dishonored it may be protested for non-acceptance or non-pay-
ment as the case may be; but protest is not required except in

the case of foreign bills of exchange.

A note secured by mortgage and indorsed for accommodation by
a third party, to be deposited as collateral.security for a loan, on pay-
ment of the loan, both the note and the mortgage become satisfied.
Coppock v. Kuhn, 2 Circ. Dec. 347 (3 R. 599). (1889.)
130 OHIO NEGOTIABLE INSTRUMENTS.

Re-Subdivision 8.

DISCHARGE OF NEGOTIABLE INSTRUMENTS,

3175j (5016) [Instrument; How Discharged.] A nego-
tiable instrument is discharged:

1. By payment in due course by or on behalf of the prin-
cipal debtor.

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

8. 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.

Where the payee of a promissory note has died, and the note has
come into the hands of his executor, and being old and much worn, the
maker, at the request of the executor, makes and delivers a true copy
of the note to such executor and destroys the original note, the inten-
tion of the parties being merely to renew the evidence of the old note,
and that the new paper should stand for and instead of the old note,
such substituted new note is not a written acknowledgment of the old
note nor a promise in writing to pay the same, so as to prevent the
statute of limitations from running against the original note under
section 4992, Revised Statutes. Goodrich et al, v. Case, Exr, 68 Ohio
St. 187. (1903.)

A defendant having interposed a cross petition praying for the
reformation of a written instrument on which the plaintiff’s action is
founded, the finding and judgment of the court thereon while it re-
mains in force is, in the further progress of the case, conclusive as to
the allegations of mistake. Reiff v. Mullholland et al, 65 Ohio St. 178.
(1901.)

An answer in an action by a payee of a promissory note against
the maker to recover a balance due after applying the proceeds of sale
of mortgaged premises, which alleges the sale and conveyance by the
mortgagor, after the execution of the note and mortgage to purchasers
who agree, as part of the consideration, to assume and pay the mort-
gage debt, and that the payee of the note was duly advised of the sale
and agreement of the purchasers to pay the note, consented thereto,
and received interest on the note from the purchasers from time to time
for seven years, and that, without the knowledge or consent of the de-
fendants, plaintiff, for a valuable consideration, agreed with the pur-
chasers to extend the payment of the note after maturity thereof, and
did so extend it, does not state facts sufficient to establish that the
payee agreed to accept such purchasers as principal debtors and to re-
lease the makers from the obligation save as sureties, and does not
DISCHARGE OF NEGOTIABLE INSTRUMENTS. 131

state a defense. Teeters v. Lamborn, 43 Ohio St. 144, distinguished.
Denison University v. Manning, 65 Ohio St. 188. (1901.)

Where a suit was brought to foreclose the lien upon certain stock
in an incorporated company created by pledge, and, at the same time
a separate suit was commenced in the same court for a judgment on
the note, and there was a finding made of the amount due in the first
suit and an order of sale, and execution awarded for any balance re-
maining due, the note thereby became merged in the finding and judg-
ment first entered, and no judgment could thereafter be taken upon
the note in the second suit. Brigel v. Creed, 65 Ohio St. 40. (1901.)

Where a person receiving a note indorsed for collection, remits
the amount thereof out of his own funds to the owner as though he
had in fact collected the note, such transaction is a payment and ex-
tinguishment of the note, and not a transfer thereof. Bank v. Craig,
Admr,. 63 Ohio St, 374. (1900.)

A promissory note executed by a member of a firm, after its dis-
solution, in consideration of the balance due upon an account with the
firm prior to its dissolution, is not, in the absence of express authority
to execute it, such promise in writing as will, under the provisions of
section 4992, Revised Statutes, take the demand on the account out of
the statute of limitations, as against the other members; and this is
so, although the business of the firm was conducted, and the note
executed, in a state by whose laws the one executing the note has
power, as liquidating partner, to execute a note in settlement of the
business of the firm that will bind the other members. Kerper v.
Wood, 48 Ohio St. 613. (1891.)

The law is the same as to payments made by such liquidating part-
ner. Ib. ,

Payment by the maker to the bearer of a note will not avail as
against the owner, where upon the facts of which the maker had no-
tice, the bearer had no right to receive payment, although the note was
drawn payable to bearer. Cappellear v. Martin, 45 Ohio St. 126.
(1887.)

Where a note was taken by a wife payable to herself or bearer,
with the design that, in case of her death, it might be collected by her
husband without the expense of administration, the fact that after her
death it was presented by him to the maker, who paid it, supposing
that the husband, by reason of the intention of the wife at the time
the note was executed, was entitled to receive payment, will not con-
stitute a defense as against the administrator of the wife’s estate. Ib.

The merger of a debt into judgment is not so perfect in equity as
to preclude the judgment creditor from resorting to the original de-
mand and the relations of the parties to it, for the purpose of enabling
him to disclose and assert an equitable set-off. Baker v. Kinsey, 41
Ohio St. 403. (1884.)

The holder of a promissory note accepted in good faith, from one
of the principal makers thereof, who, to the knowledge of the holder,
132 OHIO NEGOTIABLE INSTRUMENTS.

was insolvent at the time, a conveyance of a parcel of land in payment
of the note. Subsequently, and within four months from the time of
the conveyance, the holder of the note, on demand therefor, surren-
dered the property conveyed to an assignee in bankruptcy of the
grantor: Held, that such conveyance did not operate as payment of
the note, nor to discharge a surety thereon. Harner vy. Batdorf, 35
Ohio St, 113. (1878.)

If a payee take from the maker a promissory note, and at the same
time surrender the maker’s note of an earlier date given for a loan of
money, the facts, and not merely what the payee called or considered
the transaction, will determine whether it was a renewal or payment
of the original loan. Bank v. Slemmons, 34 Ohio St. 142. (1877.)

Payments made generally on a promissory note to a national bank,
which note embraces illegal interest, will be applied in satisfaction
of the principal. Ib,

F, owning real estate, in July, 1871, sold it to N and took, in part
payment, a purchase-money note, secured by mortgage, due in five
years, with interest. Before the note became due, N was sick, and for
a time insane, when F, believing the debt injuriously affected the mind
and health of N, voluntarily and without consideration therefor, and
for the purpose of relieving the mind of N, caused the note and mort-
gage to be delivered to H EN, wife of N, with the understanding on
his part that, when N “recovered,” they should be returned to F.
Afterward, with a like purpose, F entered a cancellation on the mort-
gage, which was entered of record. When N was restored to health and
reason, F requested N and H E N to return to him the note, and re-
store the canceled lien on the real estate. They refused. The action
was instituted before the maturity of the note and mortgage, to have
the note declared an existing indebtedness against N, the mortgage
lien restored, and for injunction. On demurrer to a petition setting
forth the foregoing facts: Held, the facts set out in the petition are
not sufficient to make a case for equitable relief sought. Faurot v.
Neff, 32 Ohio St. 44. (1876.)

The possession by the bank of a check drawn upon it is prima facie
evidence that it has been paid. Wilson v. Goodin, Wright 219. (1833.)
Watts v. Shewell, 31 Ohio St. 331. (1877.)

The presumption of satisfaction or discharge of a note or other
evidence of debt, arising from the fact of its being found in the posses-
sion of the maker, is not rebutted by the mere fact of the death of
‘the payee or former holder. Larimore v, Wells, 29 Ohio St. 13. (1875.)

Where an accommodation indorser of notes took from the prin-
‘cipal debtor a mortgage conditioned to save the indorser harmless,
‘and to pay him all money he might be compelled to pay, and might
pay, on account of such indorsements; and at the maturity of the
notes, having been informed by the principal that he could not and
would not pay the same, the indorser, in order to save the notes from
going to protest, paid the same without protest: Held, that this was
DISCHARGE OF NEGOTIABLE INSTRUMENTS, 133

a& payment within the purview of the condition of the mortgage, for
which the indorser was entitled to the benefit of the mortgage secur-
ity. National State Bank v. Davis, 24 Ohio St, 190. (1873.)

A note payable in a series of installments, provided that a less.
sum would be accepted in full payment, if each installment were paid
punctually: Held, that the larger sum was in the nature of a penalty,
and that the payment of the less discharged the obligation, though
defaults had occurred in paying the installments. Longworth’s Exrs.
v. Askren, 15 Ohio St. 370. (1864.)

G & Co., being indebted to B in sundry sums, evidenced by four
promissory notes, which were all due, two of which were made by the
firm alone, and the other two by the firm and a surety, delivered to B
a number of notes and claims held by them against other parties “for
collection, and when collected to apply on their notes, less all neces-
‘sary expenses of collection.” The amount of the claims thus placed
in the creditor’s hands was insufficient to discharge either the two
notes signed by the surety or the two unsecured notes, and the former
were the elder debts. After B had collected more than half of the
claims, and while still proceeding to make further collections thereon,
he commenced two several suits, on the same day, one against G & Co.,
on the notes executed by them alone, and the other against them and
the surety upon the other two notes. On the same day B directed his
attorney to apply the moneys which had been collected, upon the notes
_signed by the firm alone, and promised to send him a statement of the
amount for that purpose. No appropriation of the sums collected was,
in fact, made, by indorsement of credits on the notes, or otherwise,
until after the suits were brought; and B, by his petitions in each case,
demanded judgment for the whole amount of the notes sued upon. G
& Co, afterward requested B to apply the sums then collected, and
which might thereafter be collected, from the claims aforesaid, toward
the payment of the notes to which their surety was a party. B refused
to do so, but said he would apply all said collections upon the unse-
cured notes, which he afterwards did. After this, G & Co, answered,
in the action to which their surety was a party, setting up the facts,
and asking to have the payments applied as credits in that suit. The
district court, upon this state of facts, refused so to appropriate the
payments, and rendered judgment in that action against the defendants
for the full amount of the notes in suit: Held, that, in so rendering
judgment, the district court did not err. Gaston v. Barney, 11 Ohio
St. 506, 507. (1860.)

Where bank bills are transferred and received as money in pay-
ment of a debt, after the bank by which they were issued has stopped
payment, though its failure is not yet known at the place of payment,
nor by either of the parties, the loss in such case must, in the absence
of any special agreement, be borne by the party paying the bills, pro-
vided the other party be guilty of no laches in retaining them for an
unreasonable time. Westfall v. Braley, 10 Ohio St, 188. (1859.)
134 OHIO NEGOTIABLE INSTRUMENTS.

Although an indorsed note in the hands of the maker, after due,
is presumed in law to have performed its office, and to have been paid
off and taken up by the maker, yet no such presumption arises in the
case of such note before due; but, on the contrary, in such case it is
a matter of legal presumption that the note is unsatisfied, and is in-
dorsed and placed in the hands of the maker for his accommodation.
Erwin v. Shaffer, 9 Ohio St. 48. (1858).

In an action by a holder of a bill of exchange against the other
parties thereon, it is competent to prove declarations made by a prior
holder, before the transfer and after the dishonor of the bill, showing
that the parties were discharged from liability. Hollister v, Reznor,
9 Ohio St. 1. (1858.)

When a debtor tenders a bank check in payment of a debt, and
the creditor expressly waives all objection to the medium of payment,
and objects only to the amount of the proposed payment, it is a good
tender. Jennings v. Mendenhall, 7 Ohio St. 257. (1857).

An accord and satisfaction, moving from a stranger or person
having no pecuniary interest in the subject matter, if accepted in dis-
charge of the debt, constitutes a good defense to an action to enforce
the liability against the debtor. Leavitt v, Morrow, 6 Ohio St, 71.
(1856. )

At common law, the death of one of the joint makers of an obli-
gation extinguished all remedy at law against his estate. Burgoyne
vy. Ohio Life Ins. Co. 5 Ohio St. 586. (1855.)

It is only by force of an agreement of the parties, that the giving
of an unsealed note by the debtor will be payment of a precedent debt.
The burden of proof is upon the debtor, who must establish the agree-
ment clearly; and the question whether there was such an agreement
is one of fact to be determined by the jury. Merrick v. Boury, 4 Ohio
St. 60. (1854.)

AD agreement to pay $1,500 in wool, at twenty cents per pound,
may be discharged by the payment of $1,500 in money. That sum, and
not the market value of 7,500 pounds of wool, is the measure of dam-
ages, if the wool be not delivered. Trowbridge v. Holcomb, 4 Ohio St.
38. (1854.)

A discharge and certificate under the bankrupt law of 1841 will be
a complete bar to a suit on a promissory note, given anterior to the
proceeding in bankruptcy, but not included in the schedule of debts,
unless wilfully and fraudulently withheld from the list. Mitchell v.
Singletary, 19 Ohio 291. (1850.)

One or more of several joint creditors, between whom no partner-
ship exists, cannot release the common debtor so as to conclude their
co-creditors who do not assent to such release. Though they may thus
defeat an action at law, it does not follow that a recovery in equity
may not be had. Upjohn v. Ewing, 2 Ohio St. 14. (1853.)

J H indorsed to S G a note against M, in consideration whereof §
G agreed to convey to J H a certain tract of land on payment of said
DISCHARGE OF NEGOTIABLE INSTRUMENTS, 185

note. SG, by his own laches, failed to collect the note of the maker,
and neglected to take the necessary steps to charge J H as indorser:
Held, that G had made the note his own, that it should be regarded as
payment, and that he was bound to convey. Hall vy. Green, 14 Ohio
499. (1846.)

An offer to pay in bank notes, and a declaration of the party to
receive payment, that he would as soon take bank notes as specie,
but that he would take neither, and would not ratify the contract, is
a sufficient tender of payment. Wheeler v. Knaggs, 8 Ohio 169. (1837.)

An obligation to pay in the notes of a specific bank must be paid in
the notes of that bank, or their numerical value in money. Their
price in money cannot be substituted. Edwards v. Morris, 1 Ohio 524.
(1824.)

Where a bank has, bona fide, parted with all interest in a debt
contracted with it, the debtor cannot pay the assignee in the paper of
the bank. Pancoast v. Ruffin, 1 Ohio 381. (1824.)

Judgment upon a scire facias on a mortgage extinguishes a bond,
note or other evidence of the same original debt. Reedy v. Burgert, 1
Ohio 157. (1823.)

Payment may be proven by direct or circumstantial evidence.
Carrington v. Davis, Wright 735. (1834.)

Whether the giving a second note is evidence of the payment of
the first, is a question of effect, not of competency of testimony. Ham-
ilton v. Phelps, Wright 690. (1834.)

The presumption of payment arising from lapse of time is not
conclusive, and slight circumstances are received to do it away—
anything which satisfies the jury that the debt is unpaid will repel the
presumption. McBride v. Moore, Wright 524. (1834.)

An indorsement on a note for $130, is prima facie for a payment
in cash, and if it be for anything else, the party claiming against the
prima facie case is bound to prove it. Kline v. Prindle, Wright 415.
(1833.)

Where purchaser of land gave notes in payment, let them lie over
until his creditor pledged them as security for money borrowed, and
then he (payer) bought them in at a discount, chancery will not aid
him to get conveyance of land without payment of what is due, with
interest, where such a cause was resorted to. Taft v. Leavitt, Wright
390. (1833.)

Assignee of note sues obligor. Defense: note attached by cred-
itor of payee and payer garnisheed. It was claimed that only a por-
tion of the amount was attached and the jury found for the plaintiff
for the balance. Wilson v. Thompson, Wright 333. (1833.) The re-
viewing court disposed of the case by holding that the judgment
should not be reversed for error in pleading where the parties reached
a substantial issue—judgment affirmed.

Work done for the payee of a note by the payer, under agreement
to apply the proceeds to discharge the note, is a payment for so much,
136 OHIO NEGOTIABLE INSTRUMENTS.

unless by some subsequent agreement it has been determined to dias
it otherwise. Moore v. Stadden, Wright 88. (1832.) i

Payment to an authorized agent is payment to the principal. Crane
v. Halford, Wright 72. (1832.)

A creditor’s extending the time on a debt evidenced by a note dla:
charges the indorser. Duble v, Railway Co. 3 Re. 346.

Where a debtor attempts to satisfy a claim by the giving of his.
note for the amount thereof, which note was taken by the creditor, it
is a question for the jury whether the note was accepted in payment.
of the claim. Tucker v. Hendricks, 25 O. C. C. 426. (1903.)

, The rule that the payment of a less sum in satisfaction of a
larger sum, is not binding for want of consideration only applies
where the larger sum is liquidated and there is no consideration what-
ever for the surrender of part of it. Hence, where the larger sum is.
not liquidated but is the aggregate amount due upon the mutual ac-
counting, a draft for a less amount is a full consideration if accepted
as such. Brown-Ketcham Iron Works v. Hazen et al. 14 Cire. Dec.
681. (1903.)

The fact that certain creditors of an assignor for the benefit of
creditors, to whom he had executed promissory notes for goods pur-
chased before the assignment, had negotiated or discounted the notes
at a bank and taken the proceeds and applied them to the purposes
of their business, but which notes were not paid, does not extinguish
the indebtedness of the maker of the notes. Therefore, the taking of
other notes due in one day from date secured by mortgages on the
maker’s stock of goods, it being understood that the former notes
should be returned to the debtor, gives none other than the payees of
such notes any benefit under the mortgages. First Nat. Bank v. Leise,
13-23 O. C, C. 45. (1901.)

The giving of a promissory note by a debtor for the amount of an
existing indebtedness is presumed not to be in payment of the debt,
put as collateral thereto. Therefore, in an action for rent, wherein it
appears that certain notes, equal in amount to the rent due for cer-
tain months, were given by one of the tenants, unless it appears from
the evidence that the plaintiffs or their duly authorized agent agreed
to accept them in payment for the rent, such notes cannot be regarded
as in payment thereof. Price v. Coblitz, 12 Circ. Dec. 34. (1901.)

It is the duty of the maker of a negotiable instrument when he
pays it before maturity to cancel or destroy it. If he neglects to do
80, and it is payable to bearer, or bears a genuine indorsement in blank
or to bearer, and is transferred to a party who takes it before maturity
for a valuable consideration, in the usual course of trade, without
knowledge that it had been paid, such payment is no defense to a suit
upon it by the transferee. Allen v. Johnson, 11 Circ. Dec. 42 (20 R.
8). (1900.)

Notes indorsed in blank for collection by an attorney are not dis-
charged by such attorney accepting a sum less than the amount due
DISCHARGE OF NEGOTIABLE INSTRUMENTS. 137

thereon and the owner can collect the balance even though the maker
did not know that such indorsement was merely to enable the attorney
to collect. Holden v. Lippert, 4 Circ. Dec, 527 (12 R. 767).

Where money is deposited with a bank to pay a note and the note
is deposited with such bank to be collected and the bank fails on the
day the note falls due without applying the money thus deposited to
its payment, the note remains unpaid and the makers remain liable
upon it to the payee. Hurlburt v. Squires, 3 O. F. D. 469. (1859.)

The burden of proving payment falls on the parties who are liable
to pay. Fullerton v, Bank, 1 O. F. D. 175. (1828.)

Where a joint debtor on a note buys it without any agreement, the
presumption is that it is a payment, but this rule is not applicable to
a transfer from the judgment creditor to the father of one of the
judgment debtors. Wright v. Gill, 12 Dec. 12. (1901.)

The renewal of notes by a corporation after the sale or transfer of
stock by a stockholder does not release the stockholder from liability
thereon, although the renewals were made without his knowledge or
consent. Hauenschild v. Coffin Co. 10 Dec. 536 (8 N. P, 124). (1900.)

Renewals of notes, or charges in the form of the evidence of a
precedent debt, do not create a new debt or operate as a discharge or
satisfaction of the old debt, unless it is so expressly agreed between the:
parties. Ib.

Where advancements are made, part of which are covered by a
note, and payments are made on account, these payments should first
be applied to the interest upon other entire indebtedness, and the bal-
ance over should be credited on the note. Smith v. Smith, 10 Dec.
439.

Payment of a note by a third person extinguishes the note. Rob-
ertson v. Case, 8 Dec. 386. (1898.)

Where a note is deposited with a bank for collection it has no au-
thority to accept anything as payment but money; and, therefore,
giving a check which the bank accepted, is not payment. Dunn v.
Dewey, 5 Dec. 149.

3175k (5017) [When Person Secondarily Liable on, Dis-
charged.] A person secondarily liable on the instrument is
discharged :

1. By any act which discharges the instrument.

2. By the intentional cancellation of his signature by the
holder.

3. By the discharge of a prior party.

4. By a valid tender of payment made by a prior party.

5. By a release of the principal debtor, unless the holder’s
right of recourse against the party secondarily liable is expressly
reserved.
138 OHIO’ NEGOTIABLE INSTRUMENTS.

6. By any agreement binding upon the holder to extend
the time of payment, or to postpone the holder’s right to enforce
the instrument, unless made with the assent of the person sec-
ondarily liable, or unless the right of recourse against such party
is expressly reserved.

When it is proved that one who is ostensibly a joint maker of a
note, signed the same after the’ other makers as surety for them, or as
guarantor, the principal makers will not be released from liability to
indemnify the surety, or guarantor, who has paid the note, because
such suretyship, or guaranty, was made without their knowledge or
consent. A fortiori when made at the request of an agent of the prin-
cipal makers, in order to make the paper acceptable for discount.
Hecker v. Mahler, 64 Ohio St. 398. (1901.)

To discharge a surety from liability because of a variation in the
contract without his consent, it is indispensable that the variation be in
the terms of the contract by which the surety is bound. He will not
be discharged by an independent contract between the principal parties,
though it may be contemporaneous and relate to the same subject,
without varying the terms of the contract of the surety. Stuts v.
Strayer, 60 Ohio St. 384. (1899.)

Where from his own funds a surety furnishes to his principal
money to be applied to pay the debt of the principal for which the
surety is bound, and the money is thus applied by the principal, the
latter in making the payment should be regarded as the agent of the
surety, and the payment thus made will vest in the surety, as com-
plete a right to be subrogated to any securities held by the creditor as
would have vested in him had.he paid the debt in person. Zuellig v.
Hemerlie, 60 Ohio St. 27. (1899.) An action by a surety who has paid
the debt of his principal to be subrogated to a mortgage held by the
creditor as additional security for such debt is governed by Sec. 4985,
Rev. Stat., and will be barred by lapse of time, unless brought within
ten years from the time the cause of action accrued. Neal v. Nash,
23 Ohio St. 483, approved and followed. Ib.

Where an indorser of a promissory note has been discharged by
the laches of the holder, a subsequent promise by him to pay the note
will not be binding unless shown to have been made with knowledge
of the laches. Bank v. Bank, 49 OhioSt. 351. (1892.)

Where a bank, the holder for collection of a promissory note, by
its negligence discharges an indorser, the latter is not estopped to set
up his discharge, though the bank had at the time on deposit funds
of the makers, which it afterwards paid out on the faith of an exten-
sion of time granted to the makers by the indorser, if, at the time the
extension is granted, the indorser wds ignorant of his discharge, and
that the bank had indemnity within its control. Ib.

A debtor who has given a note secured by a mortgage on real es-
tate to his creditor sells the mortgaged premises to a third person,
who, in part consideration of the purchase, assumes and agrees with
DISCHARGE OF NEGOTIABLE INSTRUMENTS. 139

his vendor to pay the mortgage debt, of all which the creditor has no-
tice. Afterward, without the knowledge of the debtor, the creditor
agrees with the purchaser in ‘consideration of the payment of interest
in advance, to extend the time of payment: Held, (1) By such ex-
tension of time the debtor is not discharged from all liability on the
note. (2) That, in equity, such debtor is released from liability to
the extent of his loss by reason of such extension. Teeters v. Lam-
born, 43 Ohio St. 145. (1885.)

Where the payee of a promissory note for $1,500 held another note
of the makers for $1,000, given as collateral to the first note, with
sureties and payable at a time to which the payment of the principal
note had been extended, and the payee after the maturity of the col-
lateral note again extended the time of payment of the principal note
for a definite time, by a valid agreement and without the consent of the
sureties on the collateral note, he thereby discharged them. Slagle
v. Pow, 41 Ohio St. 6038. (1885.)

The owner of a domestic note left it with a bank for collection,
and if not collected to fix the liability of an indorser. It not having
been paid at maturity, the bank, according to a general usage of the
place, handed it to a reputable notary for presentment and protest:
Held, that the notary was the sub-agent of the owner, and the bank
is not answerable for a default of the notary in making presentment
for payment, whereby the liability of the indorser was released. Bank
v. Butler, 41 Ohio St. 519. (1885.)

After a promissory note had been protested, the maker asked the
holder “for additional time as a favor.” The holder said that he “was
willing to show any reasonable favor.” The maker then said that he
would give paper drawn on his customers, and did so when he got it.
No time for the indulgence was named: Held, (1) As the time granted
was not specified, and the arrangement furnished no means for de-
termining it, the holder retained the right to sue the maker at pleasure.
(2) The fact that the maker afterwards delivered to the holder drafts
on his customers did not cure this defect. (3) As the proceeds of
the drafts did not pay the note, the indorsers were not discharged.
Edwards v. Bedford Chair Co. 41 Ohio St. 17. (1884.) :

A valid agreement for extension of time of payment of a promis-
sory note need not be express, but may be implied and made out by
circumstances, in which a right to sue is not reserved. Osborn v.
Low, 40 Ohio St. 347. (1883.)

A payment by a principal debtor which will take a case out of
the statute of limitations as to him, will have the same effect as to his
surety, who is present for the purpose of seeing that the payment is
made and credited, and makes no statement that any limitation shall
be placed on the effect of such act. Glick v. Crist, 37 Ohio St. 388.
(1881.)

An agreement between the payee and principal of a note, for the
extension of the time of its payment for a fixed and definite period, in
140 OHIO NEGOTIABLE INSTRUMENTS.

consideration of the same rate of interest as that named in the note,
is valid, without the payment of the interest in advance, and, if made
without the knowledge of the sureties, will discharge them. Fawcett
v. Freshwater, 31 Ohio St, 637. (1877.) :

Where the holder of a note past due receives from the principal
debtor, without the knowledge of the surety, a sum of money greater
than the amount of interest then due, and the amount so received is
indorsed on the note as received on account of interest, it not appear-
ing that such indorsement was made by the holder or that he had
knowledge that the same was so made, it is not error to refuse to
charge the jury that, in law, such receipt and indorsement constituted
an agreement to extend the time of payment of the note for such period
of time as such sum would pay interest. Vose v. Woodford, 29 Ohio
St. 245. (1876.)

Calhoun as principal, and Lucas and Blessing as his sureties, made
their promissory note to a bank, and at its maturity the bank agreed to
give further time, if Calhoun would procure Boteler to sign the note
in place of Blessing; thereupon Calhoun, with the consent of the bank,
took the note to Boteler, and by falsely representing to him that Lucas
had consented to the extension of time, procured Boteler to erase the
name of Blessing and sign his own name in its place, and then rede-
livered the note to the bank, representing to the cashier that Lucas
had agreed to the arrangement: Held, (1) That this was equivalent to
the making of a new note by Calhoun and Boteler, of like tenor and
effect as the original. (2) That the sureties, Blessing and Lucas, were
thereby discharged. (3) That Calhoun, in procuring the name of
Boteler, did not act as the agent of the bank, and, therefore, as be-
tween him and the bank, Boteler is bound by the note, notwithstanding
the fraud of Calhoun. Farmers’ Bank v. Lucas, 26 Ohio St. 385.
(1875.)

The discounting of a note for the principal maker, at a usurious
rate of interest, will not discharge the sureties, where there is no in-
tention to practice a fraud on them, and in the absence of any express
agreement or understanding that the note was to be used only at a
given rate of discount. In such case the sureties must be held to
have trusted the principal as to the terms on which the note might
be discounted. Bank v. Garlinghouse, 22 Ohio St. 492. (1872.)

Where the principal maker of a note assigned all of his property to
assignees for the benefit of his creditors, and no steps were taken by
the holder of the note, nor by the surety thereon, towards presenting it
to the assignees for allowance and payment out of the assets in their
hands: Held, that the mere omission of the holder of the note to pre-
sent it to the assignees, did not exonerate the surety from liability
thereon. Dye v, Dye, 21 Ohio St. 86. (1871.)

The neglect of a creditor, whereby the estate of one surety is
released, under the statute of limitations, from its direct liability,
DISCHARGE OF NEGOTIABLE INSTRUMENTS, 141

does not discharge a cosurety from. his liability for the whole or any
part of the debt. Camp v. Bostwick, 20 Ohio St, 337. (1870.)

In a suit brought on negotiable promissory notes by the indorsee
and holder, against the maker and indorser (latter being the payee),
the maker answered, averring that the notes were made for the sole
accommodation of the payee, and that the plaintiff, having transferred
the notes by indorsement to another party, afterward, and before their
maturity, with the knowledge of the character of the paper, agreed
with the payee, for a valuable consideration, and without the knowledge
or consent of the maker, that the plaintiff would protect and take up
the notes and give the payee time for their payment “beyond the day
of their maturity.” He also averred that the plaintiff paid and took up
said notes shortly after their maturity, though he was not legally
charged as indorser by due notice of dishonor otherwise: Held, that
the facts so averred do not constitute a defense to the plaintiff’s action
against the maker, because: First. The terms of the contract set
up as a defense do not import a direct agreement to discharge the
makers. Second. The stipulation for an extension of time is void for
uncertainty, and could not, therefore, discharge the maker, even if he
be regarded as a surety. Third. The plaintiff might waive the laches
of the holder in failing to give him due notice of dishonor; the maker
was not prejudiced by such waiver, and so is not thereby discharged.
Ward v. Wick, 17 Ohio St. 159. (1867.)

A binding contract between the assignee and the mortgagor, to
extend the time of payment of the mortgage debt, discharges the as-
‘signor from his guaranty. Fithian v. Corwin, 17 Ohio St. 118. (1866.)

When the owner of a mortgage debt assigns it to a third person,
guaranteeing its payment, and takes from the assignee a note for part
of the amount of the debt, payable when the debt is collected, the as-
signor may be regarded as having an interest in the mortgage, similar
to that of a junior mortgagee. Ib.

An agreement made, upon good consideration, by a judgment cred-
itor with his principal judgment debtor, without the knowledge or
consent of the sureties, to extend the time for the payment of the
judgment, will discharge the sureties. Blazer v Bundy, 15 Ohio St.
57. (1864.)

The provisions of title 15, chapter 4 of the code of civil procedure,
regulating “proceedings by sureties,’ neither abrogates nor affects the
equitable principle which releases the surety, when, without his consent,
the time of payment is extended by agreement between the creditor and
the principal debtor. Ide v. Churchill, 14 Ohio St. 373. (1863.)

A valid contract between the creditor and one of the sureties to
‘a contract, for an extension of time to the latter, does not discharge
another surety from the entire debt; but only from such part thereof
as the first named surety would be bound to contribute to its payment. .
Ib,

Where, at the time of the negotiation of a loan, there was an un-
derstanding that usurious interest was to be paid annually in advance,
142 OHIO NEGOTIABLE INSTRUMENTS.

in addition to the highest legal rate, to be expressed in the note, and
to be paid at the end of any year during which the loan continued, it
being contemplated to continue the loan from year to year, at the
wish of the borrower, upon the terms stated; but to secure the loan,
a note with sureties was given and received, which though expressing
the rate of interest, and that the interest was to be paid annually, was,
in legal effect, payable immediately: Held, that the understanding of
the parties was controlled by the terms of the note, and that the giving
time afterward, in pursuance of the understanding, was not giving
time under an obligatory contract, and did not discharge the sureties.
Jones v. Brown, 11 Ohio St. 601. (1860.)

‘Where one on selling land takes notes for the purchase money,
with personal security, and afterward in pursuance of the contract
of sale executes a deed for the premises, by which the vendor’s lien is
destroyed, the surety upon the notes is not thereby discharged. Coombs
v. Parker, 17 Ohio 289. (1848.)

If a payee of a note past due enter into a contract with the prin-
cipal, without the knowledge of the sureties, to forbear suit for a given
time, in consideration of the payment of a specified sum of money, or
the execution of a note for such sum of money, it is a valid agreement,
and discharges the sureties. McComb v. Kittridge, 14 Ohio 348. (1846.)

A mere delay to pursue remedies or omission to enforce liens does
not operate to discharge the surety; to work his discharge there must
be some positive act of relinquishing securities or release of liens.
Farmer’s Bank v. Raynolds, 13 Ohio 85. (1844.)

To discharge a surety, the agreement must be binding and suspend
the creditor’s right to sue. Ib.

In a suit against principal and surety, a plea by the surety that
the time was extended without his consent is bad, not being an an-
swer to the whole cause of action. Slipher v. Fisher, 11 Ohio 299.
(1842.)

A proposition by the creditor, that if the debtor will pay a part
of the debt immediately, the whole being then due, he will give time
for the balance, accepted by the debtor and carried into effect between
the parties, is not such an agreement to give time as discharges the
security. Jenkins v. Clarkson, 7 Ohio 72. (1835.)

Where credit or time is given by the creditor to the principal
debtor, the security or indorser is discharged, if the credit be given
upon an obligatory contract. Bank v. Hoge, 6 Ohio 17. (1833.)

If time be given to the principal debtor without the consent of
the surety, it discharges the surety. But if the note contains a stipu-
lation for giving further time on paying interest in advance, that is
written consent by the sureties, that time may be given according to
stipulations. Reddish v. Pentheuse, Wright 538. (1834.)

If a creditor by any act of his impair the security of those col-
laterally bound for the debts of another, he discharges them, either
altogether or for so much as has been lost, to the security. Downer
yv. Zanesville Bank, Wright 477. (1883.)
DISCHARGE OF NEGOTIABLE INSTRUMENTS, 143

Where time has been given to the principal debtor under an agree-
ment which has been executed, the creditor will not be allowed, as
against the security, to show that the agreement to give time was
invalid, being without consideration. The real question in such cases
is, was time given to the principal debtor, without the consent of the
security? If so, the new contract waives the performance of the old
one and substitutes in its stead the new, thus discharging the old.
Bever v. Butler, Wright 368. (1833.)

In an action against an indorser of a promissory note secured by
chattel mortgage, an answer setting up that plaintiff failed to refile
the mortgage is no defense and judgment should be given plaintiff on
the pleadings. Shaul v. McCauley, 1 O. S. C. D. 380 (34 Bull.
278). (1895.)

Where the surety upon a note given for land at a judicial sale,
upon condition that a lien should be retained on the land for the pur-
chase price, did not, when the note was delivered, notify the receiver
making the sale of such condition, such surety will not be released by
the receiver failing to retain the lien. Joyce v. Cockrill, 12 O, F. D.
543. (1899.)

Any agreement between the holder and the drawer which suspends
the right of the holder to prosecute the bill or in any manner changes
the original contract so as to affect the rights of the indorser to his
prejudice, will discharge the indorser. United States Bank v. Hatch,
10. F. D. 312. (1830.)

A creditor extending the time on a debt evidenced by a note dis-
charges the indorser. Duble v. Railway Co. 3 Re. 346.

In an action upon a promissory note one of the defendants, a co-
surety on said note, relied as a defense upon an extension of payment
thereof, and alleged that “the defendant says that the said John E.
Allen (his cosurety) has filed his answer in this case, under oath,
claiming as a defense that he was not aware of such agreement to ex-
tend time, and did not agree and consent to the same, demanding his
discharge.” Upon motion of the defendant, Allen, to strike out the
words in quotation marks as redundant and irrelevant, it was held that
the averment could in no way prejudice him. Whip v. Anderson, Ohio
Dec. (Dayt.) 433. (1867.)

Where the plaintiff accepts interest on a note to a future day, with-
out any express agreement that the time of payment should be ex-
tended, such interest can only be regarded as a consideration for the
use of the money until that time, and where he reserves no right to
require payment sooner, there is an implied contract upon his part, ex-
tending the time of payment for the definite period for which the in-
terest was paid which will operate so as to discharge the surety. Shafer
v. Reist, Ohio Dec. (Dayt.) 326. (1869.)

Where a firm as surety without the knowledge of a cosurety ex-
tends the time of payment of the note, the cosurety is released from
liability thereon. Parrott v. McNeil, Ohio Dec. (Dayt.) 285. (1868.)
“144 OHIO NEGOTIABLE INSTRUMENTS.

Where by agreement between the principal, the creditor and a firm,
‘as surety when the notice was given, the principal debtor, in consid-
eration of said suretyship and a loan of flaxseed by said firm, was
to sow the same and deliver the crop to said firm at market price,
‘from the proceeds of which said firm was to pay the note, which agree-
ment was fully performed by the debtor, but said firm failed to apply
the proceeds in payment of the note, and without the knowledge and
consent of the defendant extended the time of payment, the cosurety
thereon wholly exonerated. If said firm was dissolved and afterwards
time was extended by payee, at the instance of one of the individuals
‘composing the firm, such extension would not exonerate defendant.
Ib.

Where an agreement extending payment if set up, would have
‘exonerated the defendant at the suit of the payee on the note, before
the justice, but not being set up the defendant is estopped by the judg-
ment as to the creditor, he is, nevertheless, in an equitable suit for
contribution by his cosurety, entitled to set up the agreement; but its
-effect would be only to suspend the right of the defendant to pay more
than one-half of the note, and as between the cosureties the defendant
was discharged from one-half the debt, and would continue to be liable
to contribute one-fourth of the same to his-cosurety. Ib.

Where one of the sureties on a note takes a mortgage from the
‘principal to indemnify him against divers claims on which he was se-
-eurity for the principal, including the note sued on, the plaintiff will
not be ordered substituted to the rights of such surety in such mort-
gage in an action against all the parties on such note. Brenner v.
‘Tate, Ohio Dec. (Dayt.) 58. (1872.)

AGREEMENT TO EXTEND TIME—CONSIDERATION.

The payment of usurious interest in advance, and an agreement to
‘pay interest at the legal rate named in the note previously delivered,
-constitute a valid consideration, for a definite extension of time of pay-
ment. And when such agreement is made without the knowledge and
-econsent of the surety, he is thereby discharged. Jones v. Brown, 11
-Ohio St. 601, cited and explained. Osborn v. Low, 40 Ohio St. 347.
(1883.)

When the answer of a surety sets up that an extension of time
was given to the principal, without the consent of the surety, he must
make this appear by a preponderance of evidence. Bramble v. Ward,
40 Ohio St. 267. (1883.)

Part payment of a debt already due is not a sufficient consideration
-for an agreement to extend the time for the payment of the residue.
“Turnbull v. Brock, 31 Ohio St. 649. (1877.)

A promise by the principal debtor to pay usurious interest is a
- sufficient consideration to support an agreement by the creditor to give
further time, and operates a discharge of the surety in the note given
-for the original loan. Wood v. Newkirk, 15 Ohio St. 295. (1864.)
DISCHARGE OF NEGOTIABLE INSTRUMENTS, 145

An agreement by the debtor to pay, and the payment by him, of a
rate of interest greater than six per centum per annum, for a future
period, constitutes a good consideration for a promise by the creditor
to extend the time of payment of his debt. McComb v, Kittridge, 14
Ohio 348, followed. Blazer v. Bundy, 15 Ohio St. 57. (1864.)

An agreement with the principal to give time, without good con-
sideration, does not discharge a surety. Farmers’ Bank of Canton v.
Raynolds, 13 Ohio 85. (1844.)

To discharge a surety, the agreement must be binding, and sus-
pend the creditor’s right to sue. Ib.

A mere delay to pursue remedies, or omission to enforce liens,
does not operate to discharge the surety; to work his discharge, there
must be some positive act of relinquishing securities or release of
liens. Ib.

Joint note stipulating that it may be continued from time to time,
upon payment of interest, binds all parties, though part were sureties,
and the continuance had without consultation with them. Reddish v.
Watson, 6 Ohio 510. (1834.)

Payment of the interest then due is not a sufficient consideration
for an extension of time on the note so as to discharge the surety.
Cone v. Rees, 5 Cire. Dec. 192 (11 R. 682). (1896.)

An agreement to extend the time on a note for a certain definite
and fixed period in consideration of the same rate of interest is valid
without payment of interest in advance, and if made without knowledge
of the sureties will discharge them. Ib.

An agreement that a note is not a payment but an extension of
time does not require a demand of payment in order to effectuate this
provision. McEvoy v. Insurance Co, 2 Cire. Dec. 329 (3 R. 569). (1889.)

An agreement with the drawer, the defendant, that if he would
permit a person in confinement under an execution at his suit to at-
tend a distant court as a witness for plaintiff the suit against defend-
ant would be continued without judgment until the next term, is an
agreement for a valuable consideration and discharges the indorser
from liability. United States Bank v, Hatch, 1 0, F. D. 399. (1832.)

The payment of $50 cash and the credit of a present collectible ac-
count on a note, at the request of plaintiff and consent of defendant,
before its maturity, is a sufficient consideration to support an agree-
ment to extend the time of payment, and the agreement to extend the
time of payment “until next fall’ is sufficiently definite to extend the
time until next December. Peffenberger v. Ley, Ohio Dec, (Dayt.)
290. (1872.)

SUBSEQUENT PROMISE TO PAY.
When the creditor admits that the extension was without the
knowledge or consent of the surety, and relies upon a subsequent prom-

ise of the surety, to pay if the principal does not, the burden of proof
is upon the creditor. Bramble v. Ward, 40 Ohio St. 267. (1883.)

10
146 OHIO NEGOTIABLE INSTRUMENTS.

If, after time has been given to a principal by a creditor, the
surety, with full knowledge of all the facts, promises to pay the note,
if the principal does not, he is liable, without any new consideration
for the promise. Ib.

Where a principal debtor, by falsely and fraudulently representing
to the creditor that his surety has consented to an extension of time
for payment, procures from the creditor an agreement for such exten-
sion in consideration that interest be paid, such agreement is, as to
the creditor, fraudulent, and he may, upon discovery of such fraud,
even after the period of extension has expired, repudiate such agree-
ment and sue upon the original contract without refunding or tender-
ing back the interest paid under such valid agreement. Bebout v.
Bodle, 38 Ohio St. 500. (1882.)

Where, after judgment against principal and sureties, the surety
requests the creditor to give the principal time, he cannot be relieved
because time was given. Baldwin v, Bank, 5 Ohio 273. (1831.)

A promise made by sureties to pay a note after being released by
extension of time of payment is not binding unless supported by a new
consideration, and it would be a departure from the petition, unless it
be pleaded as a waiver of such release. Simms v. Curtis, Ohio Dec.
(Dayt.) 334. (1872.)

WITNESSES—EVIDENCE.

The receipt by the holder of a promissory note past due, of interest
to a date fifteen days subsequent to such payment, and the indorse-
ment of such payment upon the note, is evidence competent to be re-
ceived in support of a claim of a contract to extend the time of the
payment of the note, but does not imply such contract as matter of
law; and where the person who made the payment testifies at the trial
to the transaction of payment, and is silent as to any request for ex-
tension and any agreement to extend, and the recipient of the money
on the witness stand denies that any such request or agreement was
made, a finding by the jury in favor of the claimed extension should
be set aside as not supported by the evidence. Denison University v.
Manning, 65 Ohio St. 138. (1901.)

The payment of interest, in advance, upon a promissory note is not
of itself conclusive evidence of a contract to extend the time of pay-
ment of the note for the time for which interest may have been thus
paid. Gard v, Neff, 39 Ohio St. 607. (1884.)

The action below was brought by the administrator of the payee
of a promissory note, against the makers, one of the latter being prin-
cipal and the other surety. The principal made no defense; but the
surety answered, setting up an alleged agreement between the prin-
cipal and maker, for an extension of the time of payment. The error
assigned is that the principal maker was admitted as a witness for
the surety to prove the agreement. We think he was a competent wit-
ness, and that the court did not err in permitting him to testify. Bell
v. Wilson, 17 Ohio St. 640. (1867.)
DISCHARGE OF NEGOTIABLE INSTRUMENTS, 147

In a joint suit on a note against several defendants, one of them
cannot set up as a defense at law that he was a surety and the prin-
cipal gave time for payment. His remedy is in equity. Farrington v.
Gallaway, 10 Ohio 543. (1841.)

Suit may be brought upon an original account for which notes
have been given and the time extended at any time, for any reason,
the contract extending the time of payment is lawfully annulled or re-
scinded; and it is sufficient if the notes are returned at any time up to
the day of trial. Henderson Litho. Co. v. Belford, 10 Dec, 640. (1890.)

31751 (5018) [Right of Party Who Discharges Instru-
ment.] Where the instrument is paid by a party secondarily
liable thereon, it is not discharged; but the party so paying it
is remitted to his former rights as regards all prior parties, and
he may strike out his own and all subsequent indorsements, and
again negotiate the instrument except:

1. Where it is payable to the order of a third person, and
has been paid by the drawer; and,

2. Where it was made or accepted for accommodation, and
has been paid by the party accommodated.

Where notes and other choses in action have been given to a per-
son to indemnify him for having gone security for the pledgor, with
an agreement they should be the property of the security if he was
made liable, the security does not hold the notes absolutely, but as in-
demnity, and is liable to account. Root v. Davis, 51 Ohio St. 29.
(1894.) Kinsgbury v. Phelps, Wright 370. (1833.)

K executed and delivered to T three notes, payable to T’s order
due in one, two and three years from date, and a mortgage to secure
their payment. Before either note became due, T indorsed the notes
waiving demand and notice, and delivered both to A, with an assign-
ment of the mortgage. The note maturing in one year not being paid
when due was put in judgment against K as maker and T as indorser.
K being insolvent, T paid the judgment. He then commenced suit to
foreclose the mortgage claiming the benefit of the mortgage security
and a lien prior to the lien of A, who held the remaining two notes,
which were then past due. A, by answer and cross petition, alleged
facts showing T’s liability as indorser upon the two notes, that K was
insolvent, that the lands would prove insufficient to satisfy the whole
mortgage debt, claiming priority of lien, praying foreclosure and full
relief. Later, S, on his motion, became plaintiff and filed supplemental
petition averring purchase from T, and assignment of all his rights
and interest in the mortgage and as plaintiff in the suit, and claiming
priority of lien, The land was sold. The sum realized was not suffi-
cient to satisfy the whole indebtedness: Held, that A was entitled to
payment in full from the proceeds before application of the money to
the claim of S. Anderson v. Sharp, 44 Ohio St. 260. (1886.)
148 OHIO NEGOTIABLE INSTRUMENTS.

Where the principal debtor had in his hands money of the accom-
modation indorser, or was indebted to him, in a sum equaling the
amount due upon the indorsed notes, and in pursuance of an agree-
mént between them, and with the intention to preserve the indorser’s
mortgage security, the money so in the hands of the principal debtor,
or so due from him, was applied by him in payment of the notes, and
charged to the indorser as money paid on his account, and the notes
so paid delivered to him: Held, that this was in law a payment by the
indorser and not by the principal debtor. National State Bank v.
Davis, 24 Ohio St. 190. (1873.)

A became surety for B & C, partners in trade, upon their note, pay-
able to D, for $2,000, upon B conveying to A moneyed contracts, and
lands in other counties, as collateral security, to protect him against
said liability. H shortly after bought out C’s interest in the part-
nership, and agreed to assume and pay the debt to D and all other
partnership debts. -B became insolvent, suffered judgment to be ob-
tained by D, and execution thereon to be levied on the lands of C.
A petition was filed by E, a judgment creditor of B, against B, A and
C, to subject said securities held by A to the payment of his judgment.
C’s lands being afterward sold, and D’s judgment paid from the pro-
ceeds, C also claimed said securities in respect to said debt, so by him
paid for B to D: Held, (1) That C having so, by agreement with B,
become merely his surety upon the debt to D, although sustaining to
A the position of principal, or prior indorser, was, as to said securities
held by A, to be regarded his cosurety. (2) That C, having so paid
D’s judgment, as surety of B, and thereby relieved A from further lia-
bility, became entitled, as such cosurety of A, to said securities, or to
a sufficient part thereof to indemnify him for such payment; and that
C’s equity in regard to the securities was superior to that of E. Butler
v. Birkey, 138 Ohio St. 514. (1862.)

Where one pays money on account of another by reason of having
been bound for him as security, his right of action accrues when he
pays the money, not when he became liable. Piatt v, St, Clair, Wright
526. (1834.)

The amount paid by a junior indorser, to buy his peace of the
holder, cannot be inquired into, except intended as payment pro tanto
on the note, and if so paid, the maker would be liable to the indorser
for the amount paid by him; and to the holder of the note for the
balance. Perry v. Carneal, Wright 197. (1833.)

Where surety is obliged to pay for principal after death of prin-

-cipal, he may set off such payment when sued on a debt he owed the

estate of his principal. Bentley v. Hollenback, Wright 168. (1832.)
"An accommodation indorser of a bill of exchange who, after pro-
test for non-payment by the acceptor, pays the bill, has a right of ac-
tion against such acceptor. Robinson v. Kildreth, 4 0. F. D. 44. (1865.)
Any agreement which changes the contract of the indorser to his
prejudice, suspends the right of the indorser to pay the bill and en-
DISCHARGE OF NEGOTIABLE INSTRUMENTS, 149

force payment from the drawer. United States Bank v. Hatch, 1 O. F.
D. 312. (1830.)

CONTRIBUTION.

A person making payment of a note endorsed and sent for collec-
tion is, as to nonassenting makers, a volunteer, and not entitled to
subrogation. Bank v. Craig, Admr. 63 Ohio St. 374.

The right of contribution among cosureties is not founded in con-
tract, and does not depend on the form of the instrument nor the posi-
tion of the names of the obligors therein, but is the result of the ap-
plication of general principles of equity, and depends on the actual re-
lation they sustain to the instrument and to each other. Oldham v.
Broom, 28 Ohio St. 41. (1875.)

In an action for contribution, and in the absence of any contract
in writing fixing such relation and liability between accommodation
parties to a note, parol evidence is admissible to show the real nature
of the transaction. Ib.

As between accommodation makers of a promissory note, the pre-
surfption is that they are cosureties, and as such liable to each other
to contribute; but this presumption may be rebutted by parol proof
showing that the one last signing did so as the surety for the prior
makers, and not as a cosurety with the prior surety. Ib.

The liability of a surviving surety is not discharged by mere delay
on the part of the creditor to prosecute his action against the estate of
the principal debtor within the time prescribed in Sec. 90 or in Sec. 103
of the administration act of March 23, 1840. Moore v. Gray, 26 Ohio
St. 525. (1875.)

A prima facie case for contribution is made when it is shown that
one of two joint debtors had paid more than a moiety of the debt.
Gaster v. Waggoner, 26 Ohio St. 450. (1875.)

On genera{ demurrer to a petition for contribution, in which it
is alleged that a judgment, which had been wholly paid by the plain-
tiff, was recovered against the plaintiff and defendant for a certain
sum in debt, it was properly held, that the claim, upon which such
judgment was rendered, was founded on contract, and that the parties
were jointly liable thereon. Ib.

In an action on a written instrument against two or more persons
jointly and severally bound, the finding by the court, under section
449 of the code, that one or more of the makers signed the same as
surety or bail for his or their codefendant, and the certificate in the
judgment showing which is principal and which are sureties, do not
conclude the parties as to the facts so found and certified, in an action
subsequently instituted for contribution. Gatch v. Simkias, 25 Ohio
St. 89. (1874.)

The effect of such finding and certificate is not changed by the fact
that the defendants at the trial appeared, and filed answers in which
each alleged that the others were principal debtors. Ib,
150 OHIO NEGOTIABLE INSTRUMENTS.

Plaintiff and defendant were cosureties for M on a note payable
to K. Plaintiff and others were also cosureties for M on divers other
notes. M conveyed certain lands to plaintiff by deed of mortgage, the
condition being that the deed should become void if the grantor should
“pay or cause to be paid, all said several notes according to the tenor
and effect thereof,” and should save the plaintiff from the payment of
money on account of the same. M, being insolvent, failed to pay the
notes or cause them to be paid according to the condition of the deed.
The mortgaged property was insufficient to pay all the notes men-
tioned in the mortgage. For the purpose of paying the note of K in
full, the plaintiff afterward released the mortgage as to a part of the
lands, and procured M to convey the same in fee to K. The note of K
was thus fully satisfied, and the defendant discharged from liability
thereon. The balance of the mortgaged property was subsequently
subjected to the payment, pro rata, of the other notes mentioned in the
mortgage, leaving, however, a large deficit, for which the plaintiff and
his cosureties therein remained liable. These cosureties afterward
compelled the plaintiff to account and pay to them the value of so
much of the lands which had been conveyed to K as was in excess of
the proportion of the property properly applicable to the payment of
K’s note. Thereupon the plaintiff brought his original action, in the
court below, to compel the defendant to contribute a moiety of the
amount which he had been thus compelled to pay to his other cosure-
ties: Held, (1) That, upon the above state of facts, the plaintiff is
entitled to an account and contribution from the defendant. (2) The
amount of such contribution should be a moiety of the value of so
much of the lands conveyed to K as was in excess of the amount which
would have been applicable to the payment of K’s note upon a pro rata
distribution of the whole property among the several notes mentioned
in the mortgage. (3) The plaintiff’s right to contribution, upon the
above state of facts, would not be defeated by the mere additional cir-
cumstance that at the time K accepted the conveyance in payment of
his claim, and as part of the same transaction, M procured from K a
contract, in relation to the lands conveyed, beneficial to himself alone.
(4) If, however, the plaintiff released the mortgage for the sole bene-
fit of the mortgagor, or for the purpose of obtaining his own discharge
from liability on K’s note, without exercising good faith toward his co-
surety therein, he ought not to have contribution from him, though his
conduct incidentally, but unintentionally, resulted also in discharging
the cosurety from liability on the note. Wilson v. Stewart, 24 Ohio
St. 504. (1874.)

The right to contribution among cosureties is not founded on the
‘contract of suretyship, but is based on an equity arising from the re-
lation of cosureties. Camp v, Bostwick, 20 Ohio St. 337. (1870.)

An estate of a surety released from its direct liability to the cred-
‘itor is liable to contribute to a cosurety who has paid more than his
moiety of a debt. Ib.
DISCHARGE OF NEGOTIABLE INSTRUMENTS, 151

The right of contribution among sureties is founded not in the con-
tract of suretyship, but is the result of a general equity which equalizes
burdens and benefits; and the common law, which has adopted and
given effect to this equitable principle by an action upon an implied
assumpsit, only allows the action where there is a just and equitable
ground for contribution. Russell v. Failor, 1 Ohio St. 327. (1853.)

Where a surety has voluntarily paid money on a void note or ob-
ligation, he cannot maintain an action against his cosurety for con-
tribution. Ib.

A surety receives indemnity in trust for himself and cosurety, and
no change of the indemnity, made in good faith, will discharge his co-
surety from contribution without he show consequent loss. Carpenter
v. Kelly, 9 Ohio 106. (1839.)

ACTION——-DEMAND—LIMITATION.

In an action by a surety against his cosurety, to establish a trust
and compel the latter, from the proceeds of collaterals in his hands,
to reimburse him for money paid, the person to whom payment was
made, is not a necessary party to the action. Rosenthal v. Sutton, 31
Ohio St. 406. (1877.)

The cosigners of a note, joint and several in its terms, which fell
due in 1807, and on which a suit was severally instituted in 1814
against another co-obligor, and judgment recovered, and afterward
suffered to lie dormant sixteen years, and then revived, and finally
paid thirty-eight years after it became payable, cannot be compelled
to contribute. Williamson v. Rees, 15 Ohio 572. (1846.) In such case
lapse of time would be a bar to a recovery by the holder; and an in-
direct liability does not exist where the relation of cosureties has
ceased to exist. Ib.

Notice of the payment of the debt by a surety is necessary to con-
stitute a right of action against a cosurety for contribution. Carpenter
v. Kelly, 9 Ohio 106. (1839.)

Where security pays a whole debt voluntarily, action accrues
against principal, from the time of payment, without notice or demand.
Williams v. Williams, 5 Ohio 444. (1832.)

Payment by surety or co-obligor in small sums, at different times,
does not give a right of action for each separate payment without no-
tice or demand. Ib.

One of several sureties against whom judgment has been obtained
cannot sustain a separate action against principal, under the fifth sec-
tion of the act for the relief of sureties. But in such case, where
there is a joint judgment against several sureties, all must join in the
action. Litler v. Horsey, 2 Ohio 209. (1825.)

Security may proceed against principal in equity, to have his es-
tate subjected to the payment of the debt, without making payment
himself before commencing his suit. Stump v. Rogers, 1 Ohio 533.
(1824.)
152 OHIO NEGOTIABLE INSTRUMENTS.

A survivor of a firm which was surety for a principal debtor on a
note may maintain an action for contribution against a cosurety, after
having paid the entire debt. Parrott v. McNeil, Ohio Dec. (Dayt.)
285. (1868.)

SUBROGATION—SUBSTITUTION.

A person making payment of a note endorsed and sent for collec-
tion is, as to nonassenting makers, a volunteer, and not entitled to
subrogation. Bank v. Craig, Admr. 63 Ohio St. 374. (1900.)

Where from his own funds a surety furnishes to his principal
money to be applied to pay the debt of the principal for which the
surety is bound, and the money thus applied by the principal, the
latter in making the payment should be regarded as the agent of the
surety, and the payment thus made will vest in the surety as complete
a right to be subrogated to any securities held by the creditors as
would have vested in him had he paid the debt in person. Zuellig v.
Hemerlie et al? 60 Ohio St, 27. (1899.)

An action by a surety who has paid the debt of his principal to
be subrogated to a mortgage held by the creditor as additional se-
curity for such debt is governed by section 4985, Revised Statutes, and
will be barred by lapse of time, unless brought within ten years from
the time the cause of action accrued. (Neal v. Nash, 23 Ohio St. 483,
approved and followed.) Ib.

Where a bill of exchange was drawn for the sole accommodation
of the payees, and accepted by the drawee for the same purpose, and,
owing to the insolvency of the payees, the acceptor was compelled to
pay the bill, and brought an action against the drawers to recover the
amount paid: Held, (1) That there was no implied obligation on the
part of the drawers to reimburse the acceptor. (2) That the drawers
and acceptor, as between themselves, in the absence of any under-
standing to the contrary, were not cosecurities for the payees, or liable
to contribution. Barnet v, Young, 29 Ohio St. 7. (1875.)

Where a surety, in a judgment against him and his principal,
pays the amount thereof to the judgment creditor, with the under-
standing and agreement that the judgment shall remain in force and
be assigned to him by such creditor, and procures the assignment
accordingly, he may sustain an action to be subrogated to the rights
of the creditor in the judgment, and when it becomes dormant, to re-
vive and enforce it, in his favor, against the principal debtor. Neal
v. Nash et al. 23 Ohio St. 488. (1872.)

The statutory period of limitation applicable in such action—it
being for equitable relief only—is ten years. Ib.

A surety against whom and his principal judgment has. been re-
covered, has the right, in equity, on paying the amount due on the
judgment, to be subrogated to the rights of the judgment creditor in
the judgment; and this right of the surety will not be defeated by
the fact that there was no stipulation therefor by the surety at the
DISCHARGE OF NEGOTIABLE INSTRUMENTS, 153

time of making the payment, nor by the fact that he was at the time
ignorant of the existence of such right. Dempsey v. Bush, 18 Ohio St.
376. (1868.)

When one of several cosureties pays a joint judgment against
them with the intention to save his right to be subrogated to the place
of the judgment creditor, he may afterward sustain an action to be
subrogated, notwithstanding the legal extinguishment of the judgment.
And such intention will be presumed from the simple fact of payment,
until the contrary is shown, An action in such case against the party
so liable to contribute, demanding such subrogation and a judgment
for contribution, is limited to six years under Sec. 14 of the code; and
costs therein cannot be recovered of the cosurety, unless it is preceded
by notice to him of the payment. Neilson v. Fry, 16 Ohio St. 552.
(1866.)

The fact that a surety pays the judgment in a non-negotiable note
does not affect his right to recover in an action against the principal
—his case being within the spirit, if not the letter, of the statute
(Swan, old ed. 878) authorizing a suit and recovery by a surety against
his principal, whenever judgment was rendered against the surety,
even though the judgment remained unpaid. Purviance v. Sutherland,
2 Ohio St, 478. (1853.)

Where a debtor mortgages property to his indorser to indemnify
him against liability on his indorsement, the creditor cannot in chan-
cery be substituted to the rights of the surety, in a case where no
judgment has been rendered against either principal or surety, and
where there is no allegation in the bill that either is insolvent or that
the debt cannot be collected by judgment and execution at law. Ohio
Insurance Co. v. Reeder, 18 Ohio 35. (1849.)

The creditors can only be substituted to the rights of the surety,
and the surety is not damnified till judgment has been rendered against
him. Ib.

Where judgment has been rendered against principal and surety,
and the principal is insolvent, a court of chancery will entertain juris-
diction of a suit brought by the surety for the purpose of reaching
credits of the principal, and appropriating them in payment of the
judgment, although the surety has not paid the money. McConnell v.
Scott, 15 Ohio 401. (1846.)

3175m (5019) [Renunciation by Holder.] The holder
may expressly renounce his rights against any party to the in-
strument, before, at or after its maturity. An absolute and
unconditional renunciation of his rights against the principal
debtor made at or after the maturity of the instrument dis-
charges the instrument. But a renunciation does not affect the
rights of a holder in due course without notice. A renuncia-
tion must be in writing, unless the instrument is delivered up to
the person primarily liable thereon.
154 OHIO NEGOTIABLE INSTRUMENTS.

3175n (5020) [Cancellation; Unintentional; Burden of
Proof.] <A cancellation made unintentionally or under a mis-
take, or without .authority of the holder, is inoperative; but
where an instrument or any signature thereon appears to have
been cancelled, the burden of proof lies on the party who alleges
that the cancellation was made unintentionally, or under a mis-

take or without authority.

Where, in a suit to recover money paid by mistake to the payee
of a note by a bank to which it was sent for collection, and the maker
of the note afterwards became insolvent, it appears that an attachment,
at the time of the maker’s insolvency, would have failed and that no
preference could have been secured after default upon the note, the
plaintiff is entitled to recover. Bank v. Burger, 9 Dec, 824 (41 Bull.
2). (1889.)

31750 (5021) [Alteration of Instrument; Effect of.]
Where a negotiable instrument is materially altered without the
assent of all parties liable thereon, it is avoided, except as
against a party who has himself made, authorized or assented
to the alteration and subsequent indorsers.

But when an instrument has been materially altered and is
in the hands of a holder in due course, not a party to the altera-
tion, he may enforce payment thereof according to its original
tenor. g
The date borne by a promissory note is a material part thereof;
and if the payee, without knowledge or consent of the maker, alter its
date after the note has been delivered to him, such act renders the
instrument void even in the hands of an innocent endorsee for value.
Newman et al. v. King, 54 Ohio St. 273. (1896.)

Where it is claimed by the defendant, in a suit upon a promissory
note, or similar instrument, that the note has been altered since its
execution, the burden is upon him to prove that it was so altered;
the presumption being, in the absence of anything to the contrary, that
any alteration appearing on the face of the paper, was made at or be-
fore the time of its execution. Franklin v. Baker, 48 Ohio St, 296.
(1891.)

A material alteration in a note, made in accordance with an agree-
ment between the maker and payee, does not avoid the note as to the
maker, although the change was made sometime after the agreement
and without knowledge on the part of the maker that the agreement
had been made effective by the actual alteration of the note. Ward-
low v. List, 41 Ohio St. 414. (1884.)

A material alteration of a promissory note by one of the joint
payees and holders avoids it as to sureties not assenting thereto.
Thompson v. Massie, 41 Ohio St. 307. (1884.)
DISCHARGE OF NEGOTIABLE INSTRUMENTS, 155
°

Where one of several makers of a promissory note, given for the
accommodation of the payee, and so altered after its delivery, volun-
tarily pays the same at maturity, he cannot recover on it against an-
other maker thereof, who has not consented to or ratified the altera-
tion. Davis v. Bauer, 41 Ohio St, 257. (1884.)

Where a note has been materially altered, it is error for the court,
in its charge, to make the legal effect of the alteration depend on what
the holder conceives to be its effect, or on his design as to the future
use of the note. Wallace v. Jewell, 21 Ohio St. 163. (1871.)

Any material alteration of the terms of the agreement to which
the surety acceded, made by a valid agreement between the principal
parties, without his consent, will work his entire discharge from all
liability; but where the original obligation remains unchanged, and
only his equitable rights or remedies have*been invaded by the wrong-
ful act or omission of the creditor, he will be relieved only to the extent
of his actual injury. Ide v. Churchill, 14 Ohio St. 373. (1863.)

The doctrine that a material alteration in a deed or contract in
writing, beneficial to the holder or party making the alteration, will
vitiate the instrument, is founded on a presumption of fraud; and the
alteration, to have such effect, must be such as to effect some change in
the meaning or legal operation of the instrument. Huntington v.
Finch, 3 Ohio St. 445. (1851.)

Where such alteration appearing on an instrument is not pe-
culiarly suspicious, and beneficial to the person seeking to enforce it,
the alterations will be presumed to have been made either before the
execution of the paper or by the agreement of the parties afterwards.
Ib.

A material alteration of a note made without any fraudulent de-
sign by the maker and without the knowledge or consent of the surety
after he had signed the note will release such surety from liability
thereon, and such liability will not be restored by subsequently erasing
such alteration. McAlpin v. Clark, 5 Circe, Dec, 364 (11 R. 524).
(1896.)

In an action on a note altered without authority, the burden of
proof is on plaintiff to show that the note was in that form when ex-
ecuted and delivered by the maker or such alteration was subsequently
assented to by him. Marshall v. Wilhite, 2 Circ. Dec. 500 (4 R. 203).
(1889.)

Alteration of a note by a stranger does not affect its validity. Tar-
pill v. Mill Works, 1 Circ. Dec. 643 (2 R. 564). (1887.)

The forging by the principal of the signature of a surety before
delivery to an innocent payee, is not an alteration avoiding the note
as to a precedent surety, though such act was committed without his
knowledge or consent. Ib.

3175p (5022) [What Constitutes a Material Alteration. ]

Any alteration which changes:
1. The date.
156 OHIO NEGOTIABLE INSTRUMENTS.

2. The sum payable, either for principal or interest.

3. The time or place of. payment.

4. The number or the relations of the parties.

5. The medium or currency in which payment is to be
made; or which adds a place of payment,where no place of pay-
ment is specified; or any other change or addition which alters
the effect of the instrument in any respect, is a material altera-
tion.

The date borne by a promissory note is a material part thereof;
and if the payee, without the knowledge or consent of the maker, alter
its date after the note has been delivered to him, such act renders the
instrument void even in the hands of an innocent indorsee for value.
Newman v. King, 54 Ohio St. 273. (1896.)

The erasure of the name of the payee of a promissory note, and
the substituting of another name after its delivery by a party interested
in the instrument, is a material change, and avoids the instrument as
to a maker not assenting to the alteration. Davis v. Bauer, 41 Ohio
St. 257. (1884.)

Where a complete note, payable at a future day and containing
no stipulation as to interest, is altered by the principal maker without
the knowledge of his surety, before its delivery, by the addition of the
words “with ten per cent. interest from date:” Held, that such altera-
tion is material and makes the note void as against the surety, al-
though the same is made without the knowledge of the payee. Jones
v. Bangs, 40 Ohio St. 189. (1883.)

The guaranty of the payment of a debt of another, made at the
time the debt is contracted, does not constitute the guarantor and the
principal debtor, joint promisors. And such guaranty, made without
the knowledge of the principal debtor, does not so alter his contract as
to discharge him from liability. Deming v. Board of Trustees, 31 Ohio
St. 41. (1876.)

Changing the rate of interest in a note from six to seven per cent.
is a material alteration. Such alteration when made by the principal
with the consent of the holder and owner, but without the consent of
the surety, discharges the surety, though such alteration was made
without fraudulent intent. Harsh v. Klepper, 28 Ohio St. 200. (1876.)

Where a note is signed in blank, with marginal figures indicating
the amount for which it is to be filled up, and the party to whom
it is intrusted for filling up and negotiation, alters the figures, and
fills up and negotiates the note for a larger amount, this is no forgery
of the note, and the simple fact of alteration does not of itself, and
necessarily, vitiate the note, although the party so signing in blank
was surety, and known to the payee to have signed it as such. Schry-
ver v. Hawkes, 22 Ohio St. 308. (1872.)

After the delivery of a joint and several note, the addition of the
name of a third person as maker, with the privity of the holder, but

*
DISCHARGE OF NEGOTIABLE INSTRUMENTS, 157

without the consent of the original signers, vitiates the note as to
the latter; otherwise, if the new party, through inadvertence or mis-
take, signed so as, prima facie, to indicate that his name was added in
the character of maker, when in fact such was not the intention. Wal-
lace v. Jewell, 21 Ohio St. 163. (1871.)

In a promissory note made payable one year after date, there was
the following clause: “The above to be at ten per cent. interest an-
nually:” Held, (1) That the word “annually,” in this connection, is
to be understood as relating to and defining the rate of interest, and
is equivalent to the words per annum; and that the clause is not a
stipulation for the annual payment of interest. (2) The interlining
of the word “paid” before the word “annually” in the clause aforesaid,
is a material alteration of the note. (3) Where such note had been
signed by a surety, and was subsequently, without the knowledge or
consent of the surety, so altered, before delivery, the payee being privy
to such alteration at the time of delivery, and knowing that the surety
had not assented thereto: Held, that no action can be maintained
against the surety upon such altered note. Patterson v. McNeely, 16
‘Ohio St, 348. (1865.)

H having agreed with F to loan him $500, on his note, to be signed
by B, as his surety, a note in the following terms was drawn up and
signed by F: “We jointly and severally promise to pay H L H five
hundred dollars on ten days’ notice, at ten per cent.” This note was
sent to B for his signature, who, not having ink at hand, signed it in
pencil and returned it to F, with a message, stating that he would, at
any time, “ink over’ his signature, if desired. F then presented the
note to H informing him of B’s promise, which he (F) agreed should
be performed. H then said he wished the words “interest to be paid
annually” were in the note, and at his request, those words were added
at the end of the note, by F, who then delivered the note, and received
the money, the parties intending no fraud upon B, and H supposing
the note to be valid. B was not present, and knew nothing of this
alteration. Some weeks afterward, H met B near the store of F,
and requested him to “ink over his signature to that note,” assigning
as a reason for the request that the pencil signature might wear off.
B went with him into the store of F, and in his presence, did trace
over his pencil signature with ink, without reading the note or having
any knowledge of the alteration which had been made. Upon a suit
brought by the assignee of H against the surety B: Held, that the
words added to the note were material, and that, under the foregoing
state of facts, the note never became, in either form, the valid note of
B. Boalt v. Brown, 18 Ohio St. 364. (1862.) \

When a note, payable generally, is made and indorsed in blank for
the accommodation of the maker, and at the time of its discount is al-
tered without the knowledge or consent of the indorser by the inter-
lineation of a particular place of payment, such alteration is material
and discharges the indorser. Sturges v. Williams, 9 Ohio St. 444.
(1859.)
158 OHIO NEGOTIABLE INSTRUMENTS.

Where L, at the request of S & Co. for the purpose of procuring
from the plaintiff a loan for the benefit of S & Co., joined them in a
note for $3,000, payable to the plaintiff ninety days after date, and left
the note with S & Co. for negotiation, and the plaintiff, knowing that
L was merely a surety, refused to discount the note at its face, but
without the knowledge or consent of L agreed with S & Co, to loan
them $2,000 upon it, and the same day wrote across the face of the
note: “$2,000. This note was discounted for $2,000, which amount is
due upon it. John H. Ebbert, cashier;” and the plaintiff, the note not
having been paid at maturity, brought suit against all the makers,
describing it as a note for $3,000: Held, (1) That the note, up to the
time of its transfer and delivery by S & Co. to plaintiff, had no legal
validity as a promissory note for any amount. (2) That the plain-
tiff having refused to discount the note at its face, it never became
operative as a note for $3,000. (3) That the note, when thus delivered
and indorsed, became and was in legal effect a note for $2,000, and no
more, (4) That L, being merely a surety, and never having assented
to the modification, was not liable upon it as a note for $2,000, nor the
money loaned, as upon request. Portage Bank v. Lane, 8 Ohio St. 405.
(1858.)

The material alteration of a written instrument, made by a
stranger, will not avoid it. To have that effect, the alteration must be
made by, or with the privity of, one claiming a benefit under the in-
strument, and (to give application to the doctrine upon that subject)
after the instrument has been delivered and taken effect. In such case,
a remedy is denied, and the instrument is destroyed, as a punishment
for the fraud of the party claiming a benefit under it. Fullerton v.
Sturges, 4 Ohio St. 530. (1855.)

A vendee of goods, subsequent to the purchase, gave his note for
the price, but it was not received as payment. Afterwards the vendors,
to whom it was payable, without any fraudulent purpose and under
an honest mistake of right, materially altered it: Held, that such
alteration did not preclude a recovery upon the original cause of ac-
tion, the precedent indebtedness. Merrick v. Boury, 4 Ohio St, 60.
(1854.)

The erasure of the name of a surety on a promissory note or Dill
of exchange, by agreement between the surety and the payee, is not
such an alteration as will invalidate the instrument as against the
principal. Where such alteration appearing on an instrument is not
peculiarly suspicious, and beneficial to the person seeking to enforce
it, the alterations will be presumed to have been made either before
the execution of the paper or by the agreement of the parties after-
wards. Huntington v. Finch, 3 Ohio St. 445. (1854.)

An erasure of the names of the guarantors of a note, while in the
hands of the guarantee, cannot be objected to by a subsequent indorsee,
nor by a prior indorsee. Logue v, Smith, Wright 10. (18381.)

The alteration of a promissory note by the maker thereof from
“I promise” to “we promise,” with the knowledge of the payee, but
DISCHARGE OF NEGOTIABLE INSTRUMENTS, 159

without the knowledge or consent of the surety, is a material altera-
tion and discharges the latter. Beach v. Julian, 1 O, S. C. D. 873 (34
Bull. 255). (1895.)

A note drawing six per cent. interest, given in satisfaction of a
claim, was deposited by the payee in bank and placed to his credit.
Some officer of the bank, with the understanding that between the
bank and the payee the note was to draw eight per cent., the payee
having obtained a loan from the bank at that rate, innocently wrote
the words “eight per cent.” upon the note. At maturity, payment of
the note was refused because of the alteration, and suit was brovght
against the maker by the payee upon the original claim: Held, that
the note having been innocently altered, without the knowledge or con-
sent of the plaintiff, he had a right to pay the bank the amount of the
note, take it back, and bring an action upon the original claim.
Tucker v. Hendricks, 25 O. C. C. 426. (19038.)

Alteration of a note from a non-negotiable to a negotiable note by
inserting the words “or order,” renders it void; but if clumsily done
by inserting “or order,” in the wrong place, would not render it nego-
tiable or invalid or cut off equities between the parties. Carlisle v.
Lamb, 9 Cire. Dec. 70 (16 R. 578). (1898.) ©

Changing a note by adding thereto the words “with all reasonable
attorney fees,” although of no force, is a material alteration. Kerr
v. Iddings, 3 Circ. Dec. 607 (6 R. 604). (1892.)

Changing a note by adding “with all reasonable fees” when made
by the principal with the knowledge and consent of the holder and
owner, but without the consent of the surety, discharges the surety.
Tb.

An erasure in the printed words “the order of” before the name of
the payee, plainly visible on the face of the instrument and an inser-
tion of the words “or bearer” after the name of the payee renders the
note invalid, though in the hands of a bona fide purchaser for value.
Marshall v. Wilhite, 2 Circ. Dec. 500 (4 R. 208). (1889.)

Changing a note by inserting a place of payment without an ac-
commodation indorser’s- consent or knowledge discharges him from lia-
pility thereon. Sturges v. Williams, 4 Re, 33.

Where notes after being executed and delivered were, without
authority or consent of the defendant, fraudulently altered by insert-
ing the words “from date payable annually” in each of them imme-
diately before the signature of the defendant, no recovery can be had
thereon. Wilhelm v, Snowden, Ohio Dec. (Dayt.) 435. (1872.)
160 OHIO NEGOTIABLE INSTRUMENTS,

SUBDIVISION 2.

BILLS OF EXCHANGE.

Re-Subdivision 1.

FORM AND INTERPRETATION.

38175q (5023) [Bills of Exchange Defined.] A bill of ex-
change is an unconditional order in writing addressed by one
person to another, signed by the person giving it, requiring the
person to whom it is addressed to pay on demand or at a fixed
or determinable future time a sum certain in money to order or

to bearer.

The discounting of a bill of exchange by the Kentucky Trust
Company Bank, at Covington, in the state of Kentucky, and the loan
of its motes of circulation thereon, with the understanding that said
notes should be paid out in the northern part of the state of Ohio, in
the purchase of produce, are not acts which fall within the prohibition
or contravene the policy of the act of February 24, 1848, “to amend the
act supplementary to the act to prevent unauthorized banking, and the
circulation of unauthorized bank paper.” Reznor v. Hatch, 7 Ohio
St. 248. (1857.) ,

An order by the client upon his attorney to pay money out of any
collected by him is not a bill of exchange. Crawford v. Cully, Wright
4538. (1833.)

A draft drawn in Ohio upon a bank in New York and payable in
New York is a foreign bill of exchange. Armstrong v. Bank, 6 O, F.
D. 50% (1890.).

A bill of exchange ordered from Ohio to be drawn in Kentucky and
indorsed and the money upon it to be paid there though accepted in
Ohio, is governed by the laws of Kentucky and not of Ohio. Deposit
Bank v. Turner-Looker Co, 3 Dec, 581. (1894.)

3175r (5024) [Bill Not an Assignment of Funds in
Hands of Drawee.] A bill of itself does not operate as an as-
signment of the funds in the hands of the drawee available for
the payment thereof, and the drawee is not liable on the bill
unless and until he accepts the same,

3175s (5025) [Bill Addressed to More Than One Drawee.]
A bill may be addressed to two or more drawees jointly, whether
“ACCEPTANCE. 161

they are partners or not, but not to two or more drawees in the
alternative or in succession.

3175¢ (5026) [Inland and Foreign Bills of Exchange. ]
An inland bill of exchange is a bill which is, or on its face pur-
ports to be, both drawn and payable'within this state. Any
other bill is a foreign bill. Unless the contrary appears on the
face of the bill, the holder may treat it as an inland bill.

A draft drawn in Ohio upon a bank in New York and payable in

New York is a foreign bill of exchange. Armstrong v. Bank, 6 O. F.
D. 509. (1890.)

3175u (5027) [When Bill May be Treated as Promis- |
sory Note.] Where in a bill, drawer and drawee are the same
person, or where the drawee is a fictitious person, or a person
not having capacity to contract, the holder may treat the instru-
ment, at his option, either as a bill of exchange or a promissory
note.
~  3175v (5028) [Referee in Case of Need.] The drawer
of a bill and any indorser may insert thereon the name of a
person to whom the holder may resort in case of need, that is to
say, in ease the bill is dishonored by non-acceptance or non-
payment. Such person is called the referee in case of need. It
is in the option of the holder to resort to the referee in case of
need or not as he may see fit.

Re-Subdivision 2.

ACCEPTANCE, i
3175w (5029) [Acceptance; How Made, Etc.] The ac-

eeptance of a bill is the signification by the drawee of his as- '
sent to the order of the drawer. The acceptance must be in
writing and signed by the drawee. It must not express that the
drawee will perform his promise by any other means than the .
payment of money. «
31752 (5030) [Holder Entitled to Acceptance on Face of
Bill.] The holder of a bill presenting the same for acceptance
may require that the acceptance be written on the bill, and

if such request is refused, may treat the bill as dishonored.
Where the drawer of a check, before delivering it to the payee,
has it certified as good by the bank upon which it is drawn, and the
payee presents it in due season for payment, and gives due notice to
the drawer of its nonpayment and the bank had failed at the time of

11

Fd
162 OHIO NEGOTIABLE "INSTRUMENTS.

its presentment for payment, the drawer will not be discharged from
liability on the check. Oyster Co. v. Bank, 51 Ohio St. 106. (1894.)

3175y (5031) [Acceptance by Separate Instrument.]
Where an acceptance is written on a paper other than the bill
itself, it does not bind the acceptor except in favor of a person
to whom it is shown and who, on the faith thereof, receives the
bill for value.

Upon a letter from persons in New Orleans, addressed to one in
Cincinnati, stating that bills to the extent of $10,000 would be duly
honored by them up to a certain date, the same being accompanied by
a bill of lading of shipments to their address, by steamboats, does not,
as in the case of commercial guaranties, require notice to be given
either of its acceptance or of bills drawn under it. Lonsdale v. Lafayette
Bank, 18 Ohio 126. (1849.)

81752 (5032) [Promise to Accept; When Equivalent to
Acceptance.] An unconditional promise in writing to accept
a bill before it is drawn, is deemed an actual acceptance in
favor of every person who, upon the faith thereof, receives the
bill for value. ‘

Upon a letter from persons in New Orleans, addressed to one in
Cincinnati, stating that bills to the extent of $10,000 would be duly
honored by them up to a certain date, the same being accompanied by
a bill of lading of shipments to their address, by steamboats, an ac-
tion may be maintained for a breach of promise to accept in his own
name, by a third person, who, upon the faith of such letter, has taken
bills drawn according to its provisions. Lonsdale v. Lafayette Bank,
18 Ohio 126. (1849.)

3176 (5033) [Time Allowed Drawee to Accept.] The
drawee is allowed twenty-four hours after presentment in which
to decide whether or not he will accept the bill, but the accept-
ance, if given, dates as of the day of presentation.

3176a (5034) [Liability of Drawee Retaining or Destroy-
ing Bill.] Where a drawee to whom a bill is delivered for ac-
ceptance destroys the same, or refuses within twenty-four hours
after such delivery, or within such other period as the holder
may allow, to return the bill accepted or non-accepted to the
holder he will be deemed to have accepted the same.

31760 (5035) [Acceptance of Incomplete Bill.] <A bill
may be accepted before it has been signed by the drawer, or
while otherwise incomplete, or when it is overdue, or after it has
been dishonored by a previous refusal to accept, or by non-pay-
ACCEPTANCE. 163

ment. But when a bill payable after sight is dishonored by non-
acceptance and the drawee subsequently accepts it, the holder, in
the absence of any different agreement, is entitled to have the
bill accepted as of the date of the first presentment.

‘3176c (5036) [Kinds of Acceptances.] An acceptance is
either general or qualified. A general acceptance assents with-
out qualification to the order of the drawer. A qualified accept-
ance in express terms varies the effect of the bill as drawn.

3176d (5037) [What Constitutes a General Acceptance. ]
An acceptance to pay at a particular place is a general accept-
ance, unless it expressly states that the bill is to be paid there
only and not elsewhere.

3176e (5038) [Qualified Acceptance.] An acceptance is
qualified which is:

1. Conditional, that is to say, which makes payment by
the acceptor dependent on the fulfillment of a condition therein
stated.

2. Partial, that is to say, an acceptance to pay part only of
the amount for which the bill is drawn.

3. Local, that is to say, an acceptance to pay only at a par-
ticular place.

4. Qualified as to time.

5. The acceptance of some one or more of the drawees but
not of all.

3176f (5039) [Rights of Parties as to Qualified Accept-
ance.] The holder may refuse to take a qualified acceptance,
and if he does not obtain an unqualified acceptance he may treat
the bill as dishonored by non-acceptance. Where a qualified
acceptance is taken, the drawer and indorsers are discharged
from liability on the bill, unless they have expressly or impliedly
authorized the holder to take a qualified acceptance or subse-
quently assent thereto. When the drawer or an indorser re-
ceives notice of a qualified acceptance, he must, within a rea-
sonable time, express his dissent to the holder or he will be
deemed to have assented thereto.
164 OHIO NEGOTIABLE INSTRUMENTS.

Re-Subdivision 3.

PRESENTMENT FOR ACCEPTANCE.
a

8176g (5040) [When Presentment For Acceptance Must
Be Made.] Presentment for acceptance must be made:

1. Where the bill is payable after sight, or in any other
case, where presentment for acceptance is necessary in order to
fix the maturity of the instrument; or,

2.. Where the ‘bill expressly stipulates that it shall be pre-
sented for acceptance; or,

3. Where the bill is drawn payable elsewhere than at the
residence or place of business of the drawee.

In no other case is presentment for acceptance necessary in

order to render any party to the bill liable.

The holder of a bill of exchange payable on a day certain is not
bound to present the same for acceptance to the drawee; and a pre-
sentment for payment at the time and place at which it is made pay-
able is a sufficient presentment to charge the drawer and indorsers.
Walker v. Stetson, 19 Ohio St. 400. (1869.)

W drew a bill of exchange at Cleveland, Ohio, addressed to G, at
his place of business in the city of New York, and payable on a day
certain at the Ocean Bank in the last-named city. At maturity the
bill was presented at the bank for payment, and duly protested for
non-payment. The drawee was in funds at the maturity of the bill,
and would have paid it had he been advised of its existence, but he
subsequently became insolvent: Held, that it was the duty of the
drawer to have given the drawee the requisite advice, and that the
presentment was sufficient to charge the antecedent parties to the
bill. Ib.

8176h (5041) [When Failure to Present, Releases Drawer
and Indorser.] Except herein otherwise provided, the holder of
a bill which is required by the next preceding section to be pre-
sented for acceptance must either present it for acceptance or
negotiate it within a reasonable time. If he fail to do so, the
drawer and all indorsers are discharged.

3176: (5042) [Presentment; How Made.] Presentment
for acceptance must be made by or on behalf of the holder at a
reasonable hour, on a business day and before the bill is over-
due, to the drawee or some person authorized to accept or re-
fuse acceptance on his behalf; and,

1. Where a bill is addressed to two or more drawees who
are not partners, presentment must be made to them all, unless
PRESENTMENT FOR ACCEPTANCE. 165

one has authority to accept or refuse acceptance for all, in which
ease presentment may be made to him only.

2. Where the drawee is dead, presentment may be made
to his personal representative.

3. Where the drawee has been adjudged a bankrupt or an
insolvent or has made an assignment for the benefit of creditors,
presentment may be made to him or to his trustee or assignee.

3176j (5043) [On What Days Presentment May be Made.]
A bill may be presented for acceptance on any day on which
negotiable instruments may be presented for payment under the
provisions of section thirty-one hundred and seventy-three (q)
(3173q), and thirty-one hundred and seventy-four (c) (3174c)
of this chapter. When Saturday is not otherwise a holiday,
presentment for acceptance may be made before twelve o’clock
noon on that day.

3176k% (5044) [Presentment When Time is Insufficient. ]
Where the holder of a bill drawn payable elsewhere than at the
place of business or the residence of the drawee, has not time
with the exercise of reasonable diligence to present the bill for
acceptance before presenting it for payment on the day that it
falls due, the delay caused by presenting the bill for acceptance
before presenting it for payment is excused and does not dis-
charge the drawers and indorsers.

31761 (5045) [Where Presentment is Excused.] Present-
ment for acceptance is excused and a bill may be treated as dis-
honored by non-acceptance, in either of the following cases:

1. Where the drawee is dead, or has absconded, or is a
fictitious person, or a person not having capacity to. contract by
bill.

2. “Where, after the exercise of reasonable diligence, pre-
sentment cannot be made.

3. Where, although presentment has been irregular, ac-
ceptance has been refused on some other ground.

3176m (5046) [When Dishonored by Non-acceptance. |
A bill is dishonored by non-acceptance:

1. When it is duly presented for acceptance and such an
acceptance as is prescribed by this chapter is refused or cannot
be obtained; or,

2. When presentment for acceptance is excused, and the
bill is not accepted.
166 OHIO NEGOTIABLE INSTRUMENTS.

Where a bill of exchange drawn by an Ohio corporation on their
agency in New York, payable to the order of the plaintiff was returned
under protest, plaintiff is entitled to the statutory damages of six per
cent. Hubbard v. Insurance and Trust Co. 3 Re. 294. (1858.)

3176n (5047) [Duty of Holder Where Bill not Accepted.]
Where a bill is duly presented for acceptance and is not ac-
cepted within the prescribed time, the person presenting it must
treat the bill as dishonored by non-acceptance or he loses the
right of recourse against the drawer and indorsers.

381760 (5048) [Rights of Holder Where Bill Not <Ac-
cepted.] When a bill is dishonored by non-acceptance, an im-
mediate right of recourse against the drawer and indorsers ac-
erues to the holder and no presentment for payment is neces-
sary.

Re-Subdivision 4.

PROTEST.

3176p (5049) [In What Cases Protest Necessary.] Where
a foreign bill appearing on its face to be such is dishonored by
non-acceptance, it must be duly protested for non-acceptance,
and where such a bill, which has not previously been dishonored
by non-acceptance is dishonored by non-payment, it must be
duly protested for non-payment. If it is not so protested, the
drawer and indorsers are discharged. Where a bill does not
appear on its face to be a foreign bill, protest thereof in case
of dishonor is unnecessary.

By the provisions of Sec. 10 of the act of April 13, 1858 (55 O.
L. 13), concerning notaries public, domestic bills of exchange and
promissory notes are made proper subjects for notarial protestation;
and when such paper is protested by a notary appointed and qualified
under the laws of this state, the instrument of protest is prima facie
evidence of the facts therein stated. Daniel v. Downing, 26 Ohio
St. 578. (1875.)

The certificate of protest is convenient proof of the demand and
non-payment, but is not, in such a case, essential for any other pur-
pose than the recovery of statutory damages. Estep v, Cecil, 6 Ohio
St. 536. (1856.)

It is not essential, in order to charge an indorser of a bill of ex-
change drawn in Ohio and payable in another state, for the notary
who protests it for nonpayment to attach thereto a certificate of pro-
test; notice of demand and nonpayment is sufficient to charge the in-
dorser. Ib.

Although in a technical sense the term “protest” means only the
PROTEST. 167

formal declaration drawn up and signed by the notary; yet, as used
by commercial men, it includes all the steps necessary to charge an
indorser. Townsend v. Lorain Bank, 2 Ohio St, 345. (1853.)

The dishonor of a bill of exchange drawn in this state and made
payable in another, may be proved by a notarial protest. Ib.

A bill of exchange and the protest are admissible in evidence, and
may go to the jury, although they may not, of themselves, show a
sufficient demand and notice to entitle the party offering them to
recover, Objections to them go to the effect of the evidence, not to its
admissibility. Treon v. Brown, 14 Ohio 482. (1846.)

The declaration need not contain an averment of protest. In such
action, the plaintiff may declare in a count for money lent and ad-
vanced, and under it, recover the statutory damages upon a protested
pill without an averment of protest. Lewis v. Bank, 12 Ohio 132.
(1843.)

Six per centum damages on a protested bill of exchange, ad-
dressed by mistake to the defendant in Ohio, instead of Philadelphia,
where the bill was payable, cannot’ be recovered back nor be set off
against a subsequent claim, if paid with a full knowledge of the facts.
Bank v. Reed, 11 Ohio 498. (1842.)

No protest of the dishonor of a bill, drawn by a citizen of one
state on a citizen of another, is necessary, except to recover statute
damages. McMurchey vy. Robinson, 10 Ohio 496. (1841.)

A bill of exchange drawn upon a person in Ohio, payable in New
York, and protested for nonpayment, does not entitle the holder to
six per cent. damages for protest. Bank v. Brainard, 8 Ohio 292.
(1832.)

The payees of a promissory note are entitled to recover the costs
of protest against the indorser. Doughty v. Hildt, 1 O, F. D. 601.
(1838.)

A petition for statutory damages on bills of exchange must allege
protest for nonpayment. Thompson v, Wright, 3 Re. 337.

8176q (5050) [Protest; How Made.] The protest must
be annexed to the bill, or must contain a copy thereof, and must
be under the hand and seal of the notary making it, and must
specify:

1. The time and place of presentment.

2. The fact that presentment was made, and the manner
thereof.

3. The cause or reason for protesting the bill.

4, The demand made, and the answer given, if any, or the
fact that the drawee or acceptor could not be found.

3176r (5051) [Protest; By Whom Made.] Protest may
be made by:
168 OHIO NEGOTIABLE INSTRUMENTS.

1. A notary publi¢; or

2. By any respectable resident of the place where the bill
is dishonored in the presence of two or more credible witnesses.

3176s (5052) [Protest; When to be Made.] When a bill
is protested, such protest must be made on the day of its dis-
honor, unless delay is excused as herein provided. When a bill
has been duly noted, the protest may be subsequently extended
as of the date of the noting.

8176t (5053) [Protest; Where Made.] A bill must be

_ protested at the place where it is dishonored, except that when

a bill drawn payable at the place of business or residence of
some person other than the drawee has been dishonored by non-
acceptance, it must be protested for non-payment at the place
where it is expressed to be payable, and no further presentment
for payment to, or demand on, the drawee is necessary.

3176u (5054) [Protest Both for Non-Acceptance and Non-
Payment.] A bill which has been protested for non-acceptance
may be subsequently protested for non-payment.

3176v (5055) [Protest Before Maturity Where Acceptor
Insolvent.] Where the acceptor has been adjudged a bankrupt
or an insolvent or has made an assignment for the benefit of
creditors, before the bill matures, the holder may cause the bill
to be protested for better security against the drawer and in-
dorsers.
3176w (5056) [When Protest Dispensed With.] Protest
is dispensed with by any circumstances which would dispense
*with notice of dishonor. Delay in noting or protesting is ex-
cused when delay is caused by circumstances beyond the control
of the holder and not imputable to his default, misconduct or
negligence. When the cause of delay ceases to operate, the bill
must be noted or protested with reasonable diligence.

3176x (5057) ([Protest; Where Bill is Lost, et cetera.]
Where a bill is lost or destroyed or is wrongly detained from

“the person entitled to hold it, protest may be made on a copy

or written particulars thereof.

Re-Subdivision 5.
ACCEPTANCE FOR HONOR.

3176y (5058) [When Bill May be Accepted for Honor.]
Where a bill of exchange has been protested for dishonor by
ACCEPTANCE FOR HONOR, 169

non-acceptance or protested for better security and is not over-
due, any person not being a party already liable thereon may
with the consent of the holder, intervene and accept the bill
supra protest for the honor of any party liable thereon or for the
honor of the person for whose account the bill is drawn. The ac-
ceptance for honor may be for part only of the sum for which
the bill is drawn; and where there has been an acceptance for
honor for one party, there may be a further acceptance by a dif-
ferent person for the honor of another party.

81762 (5059) [Acceptance for Honor; How Made.] An
acceptance for honor supra protest must be in writing and in-
dicate that it is an acceptance for honor, and must be signed by
the acceptor for honor.

3177 (5060) [When Deemed to be an Acceptance for Honor
of the Drawer.] Where an acceptance for honor does not ex-
pressly state for, whose honor it is made, it is deemed to be an
acceptance for the honor of the drawer.

3177a (5061) [Liability of the Acceptor for Honor.] The
acceptor for honor is liable to the holder and to all parties to
the bill subsequent to the party for whose honor he has accepted.

3177b (5062) [Agreement of Acceptance for Honor.] The
acceptor for honor by such acceptance engages that he will on
due presentment pay the bill according to the terms of his ac-
ceptance, provided it shall not have been paid by the drawee,
and provided, also, that it shall have been duly presented for
payment and protested for non-payment and notice of dishonor
given to him.

8177c (5063) [Maturity of Bill Payable After Sight; Ac-
cepted for Honor.] Where a bill payable after sight is accepted
for honor, its maturity is calculated from the date of the noting
for non-acceptance and not from the date of the acceptance for
honor.

3177d (5064) [Protest of Bill Accepted for Honor, et
cetera.] Where a dishonored bill has been accepted for honor
supra protest or contains a reference in case of need, it must be
protested for non-payment before it is presented for payment to
the acceptor for honor or referee in case of need.

3177e (5065) [Presentment for Payment to Acceptor for
Honor; How Made.] Presentment for payment to the acceptor
for honor must be made as follows:
170 OHIO NEGOTIABLE INSTRUMENTS,

1.. If it is to be presented in the place where the protest for
non-payment was made, it must be presented not later than the
day following its maturity.

_ 2, If it is to be presented in some other place than the
place where it was protested, then it must be forwarded within
the time specified in section thirty-one hundred and seventy-
four (v) (3174v).

3177f (5066) [When Delay in Making Presentment is Ex-
eused.] The provisions of section thirty-one hundred and
seventy-three (z) (3173z) apply where there is delay in making
presentment to the acceptor for honor or referee in case of need.

3177g (5067) [Dishonor of Bill by Acceptor for Honor.]
When the bill is dishonored by the acceptor for honor, it must be

_ protested for non-payment by him.

Re-Subdivision 6.

PAYMENT FOR HONOR,

38177h (5068) [Who May Make Payment for Honor.]
Where a bill has been protested for non-payment any person
may intervene and pay it supra protest for the honor of any
person liable thereon or for the honor of the person for whose
account it was drawn.

31771 (5069) [Payment for Honor; How Made.] The
payment for honor supra protest in order to operate as such and
not as a mere voluntary payment must be attested by a notarial
act of honor which may be appended to the protest or form an
extension to it.

8177j (5070) [Declaration Before Payment for Honor.]
The notarial act of honor must be founded on a declaration
made by the payer for honor, or by his agent in that behalf
declaring his intention to pay the bill for honor and for whose
honor he pays.

3177k (5071) [Preference of Parties Offering to Pay for
Honor.] Where two or more persons offer to pay a bill for the
honor of different parties, the person whose payment will dis-
charge most parties to the bill is to be given the preference.

31771 (5072) [Effect on Subsequent Parties Where Bill
is Paid for Honor.] Where a bill has been paid for honor all
parties subsequent to the party for whose honor it is paid are
BILLS IN A SET. 171

discharged, but the payer for honor is subrogated for, and suc-
ceeds to, both the rights and duties of the holder as regards the
party for whose honor he pays and all parties liable to the latter.

3177m (5073) [Where Holder Refuses to Receive Pay-
ment Supra Protest.] Where the holder of a bill refuses to
receive payment supra protest, he loses his right of recourse
against any party who would have been discharged by such pay-
ment.

3177n (5074) [Rights of Payer for Honor.] The payer
for honor, on paying to the holder the amount of the bill and
the notarial expenses incidental to its dishonor, is entitled to
receive both the bill itself and the protest.

Where, in an action and confession of judgment under the code
upon a bill of exchange with a warrant of attorney attached, the bill
of exchange attached to the petition is for sixteen hundred dollars,
payable to J D, and the petition is in the names of J D and others,
members of the firm of J D & Co., and describes the bill as for sixteen
dollars, but asks judgment for sixteen hundred dollars, and interest,
etc., and judgment is confessed on warrant of attorney and entered
accordingly in favor of the plaintiffs named in the petition, such error
in describing the amount of the bill and in the names of the parties
plaintiffs may, on motion, be corrected by reference to the bill so at-
tached to the petition. Doty v. Rigour, 9 Ohio St. 519. (1859.)

The prayer of a bill, supra protest, for the honor of the indorser,
must give reasonable notice to the party that he has made such pay-
ment for his credit, otherwise he is not subjected to refund. Wood
v. Pugh, 7 Ohio (pt. 2) 156. (1836.)

Re-Subdivision 7.

BILLS IN A SET.

831770 (5075) [Bills in Sets Constitute One Bill.] Where
a bill is drawn in a set, each part of the set being numbered and
containing a reference to the other parts, the whole of the parts
constitutes one bill.

8177p (5076) [Rights of Holders Where Different Parts
are Negotiated.] Where two or more parts of a set are negoti-
ated to different holders in due course, the holder whose title
first accrues is as between such holders the true owner of the
bill. But nothing in this section affects the rights of a person
who in due course accepts or pays the part first presented to
him.

3177q (5077) [Liability of Holder Who Indorses Two
172 OHIO NEGOTIABLE INSTRUMENTS.

or More Parts of a Set to Different Persons.] Where the holder
of a set indorses two or more parts to different persons, he is.
liable on every such part, and every indorser subsequent to him
is liable on the part he has himself indorsed, as if such parts
were separate bills.

8177r (5078) [Acceptance of Bills Drawn in Sets.] The
acceptance may be written on any part and it must be written
on one part only. If the drawee accepts more than one part,
and such accepted parts are negotiated to different holders in
due course, he is liable on every such part as if it were a separate
bill.

8177s (5079) [Payment by Acceptor of Bills Drawn in
Sets.] When the acceptor of a bill drawn in a set pays it with-
out requiring the part bearing his acceptance to be delivered up
to him, and that part at maturity is outstanding in the hands of
a holder in due course, he is liable to the holder thereon.

3177t (5080) [Effect of Discharging One of a Set.] Ex-
cept as herein otherwise provided, where any one part of a bill
drawn in a set is discharged by payment or otherwise, the whole
bill is discharged.
PROMISSORY NOTES AND CHECKS, 173

SUBDIVISION 3.

PROMISSORY NOTES AND CHECKS.

Re-Subdivision 1.

FORM AND INTERPRETATION.

3177u (5081) [Promissory Note Defined.] A negotiable
promissory note within the meaning of this chapter is an un-
conditional promise in writing made by one person to another,
signed by the maker, engaging to pay on demand, or at a fixed
or determinable future time, a sum certain in money to order or
to bearer. Where a note is drawn to the maker’s own order, it
is not complete until indorsed by him.

A writing in these words: ‘Three months after date we promise
to pay Samuel Foster, or order, one hundred and forty-three dollars
and twenty-two cents, provided the said Samuel Foster delivers the
crop of tobacco raised by him and Trockmiller, then said Foster is to
have one-fourth of the sum in hand, and, in addition, three dollars and
fifty cents per hundred for that part yet to be delivered, payable one-
fourth in hand, and the balance in one hundred and twenty days, April
28, 1827,” is a promissory note within the statute dispensing with proof
in certain cases. In an action upon such a writing, executed by four,
and process served on two only, it is not necessary to prove the execu-
tion by the other two. Ring v. Foster, 6 Ohio 279. (18384.)

A judgment note given to one creditor in an amount covering his
own claim, together with the amount of the claims of several other
creditors, by way of preference, the debtor knowing of his insolvency,
intending and expecting judgment on the note at once, and levy of ex-
ecution on all his property for the payment of all claims included in
the note, will amount to a trust for the benefit of such other creditors
and enure to the benefit of all creditors under Sec, 6344, Rev. Stat.
Wadsworth Bank v. Daniels, 1 O, 8. C. D. 667 (38 Bull. 178). (1897.)

A certificate of deposit, by the cashier of a bank, for a sum named,
payable at a future period, with interest, to the order of the person
for whose benefit the deposit was made, is a promissory note. Austin
v. Miller, 2 O. F. D. 709. (1850.)

8177v (5082) [Check Defined.] A check is a bill of ex-
change drawn on a bank payable on demand. Except as herein
otherwise provided, the provisions of this chapter applicable to
a bill of exchange payable on demand apply to a check.
174 OHIO NEGOTIABLE INSTRUMENTS.

A bank check, being an order on the bank by the drawer to pay
his money as therein directed, is revocable by him before its presenta-
tion for payment, unless the bank on which it is drawn has accepted
or certified it, or otherwise become committed to its payment; and
while an affirmative answer by the bank to a general inquiry whether
checks of a person named for a specified sum are good, is informa-
tion that such person has on deposit, subject to check, money to that
amount, it does not constitute an acceptance or certification of or other-
wise create an obligation on the bank to pay, checks which the inquirer
may then hold. Kahn, Jr, v. Walton, 46 Ohio St. 195. (1889.)

To pay for a bill of goods, the buyer sent to the seller a check,
drawn by one bank upon another, indorsed by the buyer to whose order
the check was payable, and the seller, on receiving it, sent back to the
buyer a receipt acknowledging payment of the bill. At the time of
sending the check by the buyer, and the receipt by the seller, it was
supposed by the buyer and seller that it was good, but in fact there
were no funds of the drawer in the hands of the drawee subject to
the payment of the check at the time it was drawn or afterward:
Held, that in an action on an account for goods sold and delivered, a
plea of payment cannot be maintained on the facts above stated. Fleig
v. Sleet, 43 Ohio St. 53. (1885.)

The drawer of a check delivered it to the payee, intending thereby
to give to the payee the fund on which the check was drawn: Held,
that until the check was either paid or accepted, the gift was incom-
plete; and that in the absence of such payment or acceptance, the
death of the drawer operated, as against the payee, as a revocation of
the check. Simmons v. Savings Society, 31 Ohio St. 457. (1877.)

The rightful possession of a check, made payable to the order of
a particular person, confers no authority on the drawee to pay the
same to the person having such possession, without the genuine in-
dorsement of the payee. Dodge v. Bank, 30 Ohio St. 1. (1876.)

The duty of the drawee upon acceptance of such check, to pay
the same only upon the genuine indorsement of the payee named there-
in, is not affected by a custom among bankers as to the mode of as-
certaining the identity of the person indorsing the name of the payee
and receiving payment. If the drawee relies upon false representa-
tions as to identity, for which neither the drawer nor payee are re-
sponsible, he makes payment to a wrong person at his peril. Ib.

Where the drawee attempts to justify payment to a person not
bearing the name of the payee, upon his unauthorized indorsement
of the payee’s name, on the ground that he was the person to whom
the drawer intended payment to be made, though described by a false
name; all the facts in regard to such intention being unknown to the
drawee at the time of payment, he cannot be allowed to prove a por-
tion of the facts occurring at the time of drawing the check, and to
insist upon excluding other material facts occurring at the same time
tending to disprove such intention. Ib.
PROMISSORY NOTES AND CHECKS. 175

When there is no fraud, or special understanding between the
banker and his customer, the liability of the banker for paying a
check upon a forged indorsement cannot be affected by conduct of the
customer in drawing the check, of which the banker had no notice.
Dodge v. Bank, 20 Ohio St. 234. (1870.)

Where a party depositing money in one bank to the credit of
another bank, but without the knowledge of the latter, took a letter
from the former bank addressed to the latter, advising it of the ‘de-
posit, and afterward delivered the letter to a third person, with his
own name indorsed in blank thereon, for presentation to the bank to
whose credit the deposit was made: Held, that as between the de-
positor and the latter bank, in the absence of notice to the contrary,
the bearer of the letter had authority to control the fund, and for
that purpose, to write a check or order over the blank signature.
Weirick v. Mahoning Bank, 16 Ohio St, 296. (1865.)

The circumstance that a draft for money, otherwise in the usual
form of a check, is payable on a future specified day, is prima facie,
but not conclusive evidence that the instrument is a bill of exchange
and as such entitled to days of grace. But when such instrument is
drawn upon a bank or banker, and is designed by the parties as an
absolute transfer and appropriation to the holder of so much of an
actually existing fund belonging to the drawer in the hands of the
drawee, it is nevertheless a check, and not a bill of exchange, and not
entitled to days of grace. Andrew v. Blachly, 11 Ohio St. 89. (1860.)

The usage of banks, in any particular place, to regard drafts upon
them payable at a day certain after date as checks, and not entitled
to days of grace, is inadmissible to control the rules of law in relation
to such paper. Morrison v. Bailey, 5 Ohio St, 13. (1855.)

A draft for money, in the usual form of a check, but payable on
a future specified day, is a bill of exchange, and entitled to days of
grace. Ib —

A check is always payable on presentation and demand, and is
not entitled to days of grace. Ib.

A check marked “in full” but for a less sum than is due on a
liquidated or undisputed debt, the deduction being for a pretended and
unfounded claim, does not estop the receiver from recovery of the
balance due, nor is it necessary for him to restore the amount received.

Burke v. Insurance Co, 12 Dec. 37. 1901.) | Ch. um ree te ae
A Bees

in
Piri 2°

3177w (5083) [Within What Time a Check Must be Pre-
sented.] A check must be presented for payment within a rea-
sonable time after its issue, or the drawer will be discharged
from liability thereon to the extent of the loss caused by the

delay.
A holder of a bank check failing to present it for payment until
after the drawer had been adjudged a bankrupt is not entitled to
176 OHIO NEGOTIABLE INSTRUMENTS.

priority of payment from funds in the hands of the assignee, though

the drawer has funds on deposit with the drawee sufficient to meet

it from the time the check was made. Smith, In re, 11 0. F, D, 331.

1877.) N & f an = eA de bak pb ean uw Boikey ‘
oe ce

3177x (5084) [Certification of Check; Effect of.] Where

a check is certified by the bank on which it is drawn, the certi-

fication is equivalent to an acceptance.

Where the drawer of a check, before delivering it to the payee,
has it certified as good by the bank upon which it is drawn, and the
payee presents it in due season for payment, and gives due notice to
the drawer of its nonpayment and the bank had failed at the time of its
presentment for payment, the drawer will not be discharged from
liability on the check. Oyster Co. v. Bank, 51 Ohio St. 106. (1894.)

A drawer of a check by having it certified is not relieved from
liability thereon if due notice of dishonor is served on him. Cincin-
nati Fish Co. v. Bank, 2 Cire. Dec. 463 (4 R. 185). (1889.)

3177y (5085) [Effect where the Holder of Check Procures
it to be Certified.] Where the holder of a check procures it to
be accepted or certified, the drawer and all indorsers are dis-
charged from lability thereon.

3177z (5086) [Where Check Operates as an Assignment. ]
A check of itself does not operate as an assignment of any part
of the funds to the credit of the drawer with the bank, and the
bank is not liable to the holder unless and until it accepts or
certifies the check.

Where the drawer of a check has no account individually with
the bank upon which the check is drawn, but has an account there
_as administrator, or in some other trust capacity, it is wrong for the
bank to pay the check and charge it to the trust account. Bank v.
Bank, 58 Ohio St. 207. (1898.)

An action cannot be maintained against.a bank by the holder of
a check for refusal to pay it unless the check has been accepted, al-
‘though there stands to the credit of the drawer on the books of the
bank a sum more than sufficient to meet the check. Railroad Co. v.
Bank, 54 Ohio St, 60. (1896.)

The check of a depositor for part of the sum due him, is not an
assignment pro tanto, without acceptance by the bank. Bank v. Brew-
ing Co. 50 Ohio St. 151. (1893.)

Money received by a bank on general deposit becomes the prop-
erty of the bank, and its relation to the depositor is that of debtor,
-and not of bailee or trustee of the money. Ib.

Where, at the time a check is drawn, or is presented, the drawer
is indebted to the bank on past due paper, it may treat the cross de.
PROMISSORY NOTES AND CHECKS. 117

mands existing between them as compensated so far as they equal
each other, and credit the demands accordingly; and, if there is not
then sufficient balance standing to the credit of the drawer, payment
of the check may' be refused for want of funds. Ib.

A bank check or draft for a part of the sum due the drawer,
does not, before acceptance by the drawee, constitute an equitable as-
signment of the amount for which it is drawn, Covert v. Rhodes, 48
Ohio St. 66. (1891.) When, after the drawing of such check or
draft, the drawer makes an assignment of all his property for the
benefit of his creditors, and notice of the assignment is received by
the drawee before the check or draft is presented for acceptance or
payment, the title to the whole amount standing to the credit of the
drawer at the time of the assignment, passes to the assignee for the
equal benefit of all the creditors. The holder of the check or draft is
not entitled to priority over the other creditors. Covert v. Rhodes, 48
Ohio St. 66. (1891.)

A drew his negotiable draft in favor of C, a banker, on B for the
exact amount due him, for the purpose of having C discount the same,
which he did, in the usual course of business, and paid to A the pro-
ceeds. While the draft was in transit to B for acceptance and pay-
ment, he, without any knowledge of ‘its existence, remitted the amount
due, by certified check on his banker to A, who received and converted
it to his own use, by depositing it to his credit with his banker, as
cash, together with his other deposits, subject to his checks. On pre-
sentation of the draft, B refused to accept or pay, and it was returned
to C. A then made a general assignment, having a bank balance to his
credit greater than the amount of his draft. This check was forwarded
by his banker for payment, and two days after the assignment, was
paid by the bank certifying the same: Held, (1) That as between A
and C, and under these circumstances, C acquired, by equitable assign-
ment, the right to the amount then in B’s hands. (2) That B having
remitted to A the amount, by check, before notice of the draft, which
was afterwards paid, was released from the obligation to accept or
pay, but the check in the hands of A, or his banker, or its proceeds
when collected, belonged in equity to C in the absence of any inter-
vening right, and he may, in an action for equitable relief against
the parties, have the same applied to the payment of his draft. (3)
The conversion by A of this check, by obtaining a credit therefor on
his account in bank, did not defeat this right to the proceeds of the
check when collected, there being a sufficient balance out of which to
pay the same, and no intervening right of the bank or others having
attached. Gardner v. Bank, 39 Ohio St. 600. (1883.)

The drawer of a check payable to the order of the plaintiff, de-
livered it to a third person in exchange for property of the plaintiff,
such third person claiming to be the plaintiff, and saying that he
could identify himself at the bank. In ignorance of the circumstances
under which the check was given, the bank paid the check to the

19
178 OHIO NEGOTIABLE INSTRUMENTS,

bearer without inquiry, on the forged indorsement of the plaintiff’s
name: Held, (1) That the plaintiff could ratify the act of the drawer
in giving the check, and by such ratification the check became his
property, for the amount of which he could maintain an action against
the bank. (2) The fact that the drawer, with notice of the plain-
tiff’s claim against the bank, subsequently lifted the check and was
charged with its amount in his settlement with the bank, did not
affect the rights of the plaintiff. Dodge v. National Exchange Bank,
20 Ohio St. 234. (1870.)

A covenant on the part of a debtor to pay the debt out of the first
money received from a particular fund, but which gives the covenantee
no present right or control over the fund, save through the covenantor,
and looks to the future acts of the covenantor to render the fund
available, does not operate as an equitable assignment of the fund to
the covenantee. Christmas v. Griswold, 8 Ohio St. 558. (1858.)

The drawing and delivering of a check operates as an equitable
assignment of so much of the funds of the depositor. Voorhees v.
Hesket, 1 Cire. Dec, 1 (1 R. 1). (1885.) ;

A payee of a check for a part of the money on deposit cannot, be-
fore acceptance, sue the bank therefor, as there is no privity between
the parties. Railway Co, v. Bank, 8 Dec. 585. (1896.)

A payee of a check cannot sue a bank for refusing to cash a check
drawn on it. Ib.

Where a note is deposited with a bank for collection it has no au.
thority to accept anything but money as payment; and, therefore,
giving a check which the bank accepted, is not payment. Dunn v.
Dewey, 5 Dec. 149.
GENERAL PROVISIONS. 179

SUBDIVISION 4.

GENERAL PROVISIONS.

3178 (5087) [Definition and Meaning of Terms.] In this
chapter, unless the context otherwise requires:

“* Acceptance’? means an acceptance completed by deélivery
or notification.

‘‘Action’”’ includes counterclaim and set-off.

“‘Bank’’ includes any person or association of persons car-
rying 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 a bill of exchange, and ‘‘Note’’ means negoti-
able promissory note.

“‘Delivery’’ means transfer of possession, actual or con-
structive, 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 deliv-
ery.

‘“Instrument’’ means negotiable instrument.

‘*Issue’’ means the first delivery of the instrument, com-
plete 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.

The words “bonds, bills and notes,” in the act for the relief of

sureties and bail in certain cases, includes bills of exchange. Ohio
Insurance Co, v. McCague, 18 Ohio 54. (1849.)

3178a (5088) [Person Primarily Liable on Instrument.]
The person ‘‘primarily’’ liable on an instrument is the person
who by the terms of the instrument is absolutely required to pay
the same. All other parties are ‘‘secondarily’’ liable.

3178b (5089) [Reasonable Time; What Constitutes.] In
determining what is a ‘‘reasonable’’ time or an ‘‘unreasonable
time’’ regard is to be had to the nature of the instrument, the
180 OHIO NEGOTIABLE INSTRUMENTS.

usage of trade or business (if any,) with respect to such instru-
ments, and the facts of the particular case.

3178c¢ (5090) [Time; How Computed; When Last Day
Falls on 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.

Where a note payable in specific articles falls due on Sunday, a
tender on the Monday following is good. Barrett v. Allen, 10 Ohio
426. (1841.) °

3178d (5091) [Application of Chapter.] The provisions
‘of this chapter do not apply to negotiable instruments made and
delivered prior to the taking effect hereof.

3178e (5092) [Law Merchant; When Governs.] In any
case not provided for in this chapter, the rules of the law
merchant shall govern.

Where, in the absence of any statutory provision on the subject,
a rule of commercial Jaw has been adopted by the court of last resort
in this state, the usage will thenceforth be presumed to conform to
such rule throughout the state; and this presumption, if not con-
clusive, can only be rebutted by clear proof of a uniform and settled
local usage to the contrary. Isham v. Fox, 7 Ohio St. 317. (1857.)

As to negotiable paper strictly commercial, such as that on its ,

face negotiable at panks, the act of Ohio, of 1820, makes no change
in the rule of the law merchant, Davis v. Herrick, 6 Ohio 55. (1833.)

 
HOLIDAYS, 181

SUBDIVISION 5.

HOLDAYS,

8178f (5093) [Holidays.] The following days, viz:

1. The first day of January, known as New Years Day.

2. The twenty-second day of February, known as Wash-
ington’s birthday.

3. The thirtieth day of May, known as Decoration or
Memorial Day.

4, The fourth day of July, known as Independence Day.

5. The first Monday of September, known as Labor Day.

6. The twenty-fifth day of December, known as Christmas
Day.

7. Any day appointed and recommended by the Governor
of this state or the President of the United States as a day of
fast or thanksgiving; and

8. Any day which may hereafter be made a legal ‘holiday,
shall, for the purposes of this chapter, be holidays; but if said
days firstly (1), secondly (2), thirdly (3), fourthly (4), sixthly
(6) and eighthly (8) herein be the first day of the week known
as Sunday the next succeeding secular or business day shall be
a holiday. [92 v. 61; 90 v. 129; 81 v.104; 77 v.9; Rev. Stat.
1880, Sec. 3177; 67 v. 15, Sec. 3 (8S. & S 490).]
182 OHIO NEGOTIABLE INSTRUMENTS,

SUBDIVISION 6.

PATENT RIGHT NOTES,

31789 (5094) [Note Given for Patent Right; How to be
Written, et cetera.] A promissory note, or other negotiable
instrument, the consideration for which consists in whole or in
part, of the right to make, use, or vend a patented invention, or
an invention claimed to be patented, shall have written or
printed prominently and legibly, across the face thereof, and
above the signature thereto, the words ‘‘Given for a patent
right;’’ such instrument in the hands of any purchaser or
holder, shall be subject to the same defenses as it would be in
the hands of the original owner or holder; and any person who
purchases or becomes the holder of a promissory note, or other
negotiable instrument, knowing it to have been given for the
consideration aforesaid, shall hold the same subject to such de-
fenses, although the words ‘‘given for a patent right’’ are not
written or printed upon its face. [Rev. Stat. 1880, Sec. 3178;
66 v. 93, Sec. 1 (S. & S. 510.]

The act of May 4, 1869 (66 O. L. 93), “to regulate the execution
and transfer of notes given for patent rights,” is not in conflict with
Sec. 8 of Art. 1 of the constitution of the United States, nor of the
act of Congress enacted in pursuance thereof, relating to the granting
of letters patent. Tod v. Wick Bros. 36 Ohio St. 370. (1881.)

Where a negotiable promissory note, given for an interest in a
patented invention or discovery, not having the words “given for a
patent right” written or printed thereon, is negotiated to one having
knowledge of its consideration, he takes it subject to such defenses and
such only, as would have existed against it, if such words had been
legibly written or printed thereon. Ib.

When A contracts to sell and assign to B the exclusive right to
manufacture fruit cans in several methods, differing in detail, B is not
jbound to accept the assignment of a patent covering one only of such
methods of manufacture, though the other specified methods are un-
patented and may lawfully be used by B. Serviss v. Stockstill, 30
‘Ohio St. 418. (1876.)

The act of May 4, 1869 (66 O, L. 93), making it a penal offense
‘to take a “promissory note or other negotiable instrument,” not con-
‘taining the words “given for a patent right,” knowing the considera-
tion thereof to be a patented invention, does not include in such offense
PATENT RIGHT NOTES. 183
the taking of notes or instruments not negotiable. State v. Brower, 30
Ohio St. 101. (1876.)

The act of May 4, 1869, regulating the execution and transfer of
notes “given for patent rights,” relates only to the instruments named
in the act, when given for an interest in the invention, secured to a
patentee by letters patent, and does not include in its provisions
negotiable paper, given for machines built under letters patent, nor
negotiable paper, given to secure the agency to sell machines so built,
in certain specified territory. State v. Peck, 25 Ohio St. 26. (1874.)

The purchaser of a promissory note without endorsement or other
guaranty of payment, but with notice that it was given for a patent
right, is not thereby, as a matter of law, charged with notice that it
was obtained by fraud or without consideration. Sackett et al. v.
Kellar, 22 Ohio St. 554. (1872.)

The holder of negotiable promissory notes, purchased before ma-
turity, and for value, but with notice that they had been obtained from
the maker by fraud and without consideration, cannot, by way of es-
toppel, prevent the maker from setting up such defenses as against
him, by showing that the maker, before the purchase, had informed
him that the notes were all right, and would be paid at maturity, if
it appear that, at the time such declarations were made, the maker
was ignorant of such fraud and want of consideration, and that the
holder at the time believed him ignorant thereof, unless he also show
that he informed the maker of the facts which had previously come
to his knowledge affecting the validity of the notes. Ib.

Relief will be afforded, in a court of equity, against the payment
of notes given for a void patent right. Darst v. Brockway, 11 Ohio
462. (1842.)

An injunction will be allowed against the collection of such notes
as may be outstanding and in the hands of the vendors of the patent
right. Ib.

The defenses which may be made, by virtue of the provisions of
Sec, 3178, Rev. Stat., to a negotiable instrument, having written across
its face “given for a patent right,” are limited to such matters of’ de-
fense as grow out of the transaction in which the instrument origi-
nated. Allen v. Johnson, 11 Cire, Dec. 42 (20 R. 8). (1900.)

Does not destroy the negotiability of the note or render it illegal
if the words “given for a patent right’ are not written across the
face of the note. Ib.

The abuses that it was sought by this section to remedy was that
of obtaining a negotiable instrument for a patent right and then pre-
cluding defenses by a sale of the same before maturity to a bona fide
holder. Ib.

Section 6993, requiring the words “given for a patent right” writ-
ten or printed across the face of a note given for a patent right, is in
contravention of the laws of the United States relating to patent rights
and is invalid. Lake, In re, 6 O. F. D. 58; as it impairs the value of
184 OHIO NEGOTIABLE INSTRUMENTS.

patent right property created by the constitution and laws of congress,
Woolen v. Banker, 6 O. F. D. 56; Ib. 40. F. D. 440. (1877.)

Section 2. That original sections 3171, 3172, 3173, and
3174, and original sections 3175, 3176, and 3177, as amended
March 12, 1896 (92 Ohio Laws, 61-62), and original section
3178 of the Revised Statutes of Ohio, be and the same are hereby
repealed.
' Section 3. This act shall take effect and be in force on and
after the first day of January, nineteen hundred and three
~ (1903).
INDEX.

(The references are to pages.)

PAGE

ACCEPTANCE, meaning of term............. snaseiw lela ans ee winepcna ste 179
What. dt ASec4iec god cena nds eee v4 ene ee a ete eee ee weewe eke 161
MUSt, He. An WILDS se vieudee oss Mccann G assem o.008 Cocsusid axe dues hae eee Sane 161
TAUSE) DG) SIENA occ oc cagwiel BS eal ee RAMON Hine ede MYR d ae MRE 161
holder may require it to be on face of bill................0. 161
must be for payment in money........... cc cece cence eee ees 161
form of ......... seawwhe GEIR SE tice tod Seccaa hs Weanteepeaasauee sabes toed 161
by separate instrument.......... 0... cece cece cece eens 162
when acceptance on separate instrument binds acceptor....... 162
promise to accept deemed acceptance......... FaSte oe eRe ES 162
time allowed drawee in which to accept...................-5- 162
when retention of bill amounts to acceptance................. 162
Where: Dill OVErQUe ini scdis,4 sing doce le re peers B50 44s VRS Bie tare So wae 161, 162
after bill dishonored..............cc cece cece ence ee eeaes 161, 162
of incomplete Dill... ... 0 cece eee cece cece eect eee eeeeeeeee 162
Gate: Of ACCEPtANCE 0 <j. sise ccs wiee dn a wesuous ado ie www s w aenetendie 162
kinds of acceptance......... ie thaa Sa wees iE ean 163
what constitutes general acceptance.............. deed Rehie eae 163
qualified ACCEPLANCE x icsscses a Sad oad wee Wie 62 Rees CERES Fe Re RS 163
conditional ........... sheediiei Ris. aired Bara eciaue Betvahi aa 1B odes cas cevavareaussete 163
LOCA] iii edie entangle cated wae Ree ee ede ae esa Regia he aw aegeee eee 163
‘partial ...sac css vaeceitewsss vee bea HRe wes Beets wee ou Ce EE Ee ¥ 163
‘duty of holder where bill dishonored by,non-acceptance....... 165
‘when bill dishonored by non-acceptance.............00.aeeeee 165
‘what bills must be protested for non-acceptance............... 166
of bills in set............ APPEL LY RE LER see THESE OSE Rees 172

ACCEPTANCE FOR HONOR, when bill may be accepted for honor.

Je eiegine ee wise i aed chahss- woe Reese een Re are gad Wee ee OB G9:
How Made: 6434 vee sis see sek scke ede ee obs ea ERE ey pee Fees ees 169
for part Of SUM) ..0. 2. cca ca taeges esd teeta Rees Se .... 168, 169
for different parties................4. bcd aaa tne as vena esa pate steel 168, 169
when acceptance does not state for whose honor made........ 169
agreement of acceptor for honor..... 6-24 SURES HER AGA SHE s BO 169
liability of acceptor for honor..... Wwe nan eA AGRE AT FS 169
maturity of bill payable after sight accepted for honor,....... 169
how presentment for payment made to acceptor for honor.... 169
dishonor of bill accepted for homor............ ccc cece eeeecee 170

when delay in making presentment excused................06. 170
186 INDEX.

PAGE
ACCEPTOR, by accepting, admits existence of drawer............ 95
admits genuineness of drawer’s signature..............0. anes. 95
admits drawer’s capacity to draw............seeeee Hinge 24 Gees 95
admits authority to draw..............0- Dinverene cuss wane eco 95
liability of acceptor...............0.000% aaa eles eyauelearseaks 95
demand of payment not necessary in order to charge....... . 106
when acceptor insolvent, bill may be protested for better se-
CURITY «6 ta aaean sinuses ea teins iiics aiseliese Sen auas os oe Reiecaeeene ae 168
ACCEPTOR FOR HONOR, liability of......... 0.0.0... e eee eens 169
agreement of acceptor LO? BOR Ces oe eeus cho newese  desanae de 169
ACCOMMODATION PAPER, payment of by party accommodated
GISCHATLES: WAVED se sysscca cd skcs Shaieapleks Ge Syavese ce ave. ausnelao dis Gusiqiecs“ouaigod 130
ACCOMMODATION PARTIBS, liability of..................00005 53
rights of on payment of instrument............. 0. eee cee ee . 147
ACTION, Meaning’ of; ...c 30 seu secdorwseeeneses sa yas db ae arate Bees 179
restrictive indorsement confers right to bring... ............ 58
AGENT, Signature by 2... cases cs dewe ie enews es enewes a eisonere tues easis 31
AWMtHOrity: OL ais o.ccaiie x oe eiodis vos Sects oy Grd sd ane Se be Ge esd 31
how authority ShHOWN......... cc cece eee eee eee eee {tsa idea owes 31
liability of person signing as agent........... 0... cece e eee 35, 106
may give notice of dishonor............sesee eee seen 119, 120
notice of dishonor may be Ziven t0........... ccc cece eee eens 121
ALTHRATION,. effect Ofs<scccwesct, peed oa Deee seas BUSTS Vem OSSS 154
holder in due course may enforce instrument according to —
Obiginial tenor sce iaiaiwea a tienes ek SOW wows Bee 154
what constitutes a material alteration, ..............-.... 155, 156
aSi tO dal@isacavtunvcsagee bees eae seuuiancos nae’ ees «... 155, 156
as to Sumi payable... ccc stewscs stew vcos wees cosee es vee 155, 156
as to time of payment. ....... cc ccc eee ee ee ee eee neces 155, 156
as to place of payMent........ cece eee eee eee eee 155, 156
as to number of partieS....... 0... cece cee cece eee ween 155, 156
as to relation of parties, .. 62.5 06sec cee see vee seeeceaiees 155, 156
as to medium of payment.......... cece eee eee eee eee eee 155, 156
addition of place of payment............... cc cece eee eee 155, 156
Other Changses: ¢s$20cw hee ee eons ee USE VC eg ew as .. 155, 156
AMBIGUOUS INSTRUMENT, construction of................ scavw 24
ANTECEDENT DEBT, constitutes value................ ecauens ven 43
ANTEDATED, instrument not valid because........... cece eeeees 20
ASSIGNMENT; Dill ts) nots sisi cc cease ce cacy se cues seas Seid aaels 160
Check AS. NOt. casei 4 gow eee a. SSE te Moet eae de wets we Sale 176
when check may amount to.............000- inde eReetine rede aren: ALCO.

ASSUMED NAMB, person signing in........ std cig a Santee ks veeee 528
INDEX. 187

PAGE
ATTORNEY’S FEB, provision for........... er ae smear eee MAL
BANK, meaning of.............. Bit cik oie. eras vat aval euiateid yatrani ha iess-e rebar neces SEU:
instrument payable at equivalent to order to pay............. 116
presentment of instrument payable at............. Red MARES 110 ©
liability of on certified check.............. Ba Bits jeuacsvanaielayavers -- 176
not liable on check unless it accepts or certifies the same...... 176
BEARER, meaning of term....... ene aE eenewalawes aistataalievas tea ear 179
instrument must be payable to or order...... Beas ieleoemyamiveyoeates 8
when instrument is payable to................. sasalitayg: | ABE ES:
instrument payable to person named or bearer........... 18, 19
instrument payable to fictitious person.................. 18, 19
when payee not name of any person,......... isuatereraxeeuees 18, 19
when indorsed in blank............ Save bemnes axa eee a rive 18, 19
indorsement of instrument payable to...............e00. 61, 105
BILL, meaning of terMisscvxnvscg en cen ead sne vee nee wares oewete aay LTD
BILLS IN A SET constitute one bill.............000eeeeee sauces 171
rights of holder where different parts are negotiated.......... 171
liability: Of IMGOTSORs jv cig oc-erei dae wrareras aatenariealese he . 171, 172
acceptance: Ofiscsi ssa vedewese cea Redes Cee See ERED Saeeieea ls 172
DAYTON E, OT ieage esexacs ap oese es sie auesiecn tes Stasagidee easily aa BaeidiaeG satdvophenqitlsiona 172
effect of discharging one of a set...............005- piece toretee gin 172
BILL OF EXCHANGE, term “bill” means bill of exchange........ 179
ambiguous instrument may be considered either bill or note... 24
GATTO, OE se nccecassais gear Riane aac oielel weaavelaw tare iaeiiie jails weatnwvenank 160
is not an assignment..... siciow Saad Ae ae WMeemeuRaSe ae 160
where drawer and drawee are same person.................. 161
may be addressed to two or more drawees............... 160, 161
put not to two or more in the alternative........... «eee 160, 161
inland bill, what constitutes........ 0... cee eee cee eee eee 161
foreign bill, what constitutes......... 0. ccc eee eee eee 161
when bill may be treated as promissory note.................. 161
referee: in case Of need .i. i. cee cc coer nares ce owss 28 04 Ve RTO 161
BLANKS, when may be filled. ......... ccc ccc ee cece nce e ne eees 20
when improperly filled. oscsaa.vadswordins cae e than Meares geet 20
no authority to fill where instrument has not been delivered... 21
BONDS, liability of person negotiating. ht spsis ev su sieah pura banaliabaneceutsin upeatio 99
BROKER, liability of............. ei iahs sais ofa poeeiod dee stems ites 105
BURDEN OF PROOF, where title of prior party was defective..... 92
CANCELLATION discharges instrument...............04- seeeeee 130
effect. Of.3 cscs cncens an yest ieeaa avs (ates era easter biel ooenavraue aise eh doesers «. 154

burden of proof......... Sale Ree sttte eee ees sagawanexewanie 154
188 INDEX.

PAGE
CAPACITY, acceptance admits capacity of drawer to draw bill.... 95
warranty, where negotiation by delivery............cceeeeees 99
warrant of by general indorser...........-...2.ececceecccece 100
CASHIER, instrument payable to.............cccceccecceccesenes 61
CERTIFICATION, effect Of......... 0 ccc cee cecccceccvsvccaceeees 176
where holder has check certified..............ccccuccccceeces 176
where drawer has check certified...............ccceeeeeecacs 176
CHECK, defined) ji '.a5 auea de nies aeq aie y ae 4 AW Aad sere db aradeeds bee 173
within what time must be presented..............ccccceeeecs 175
OILECE OF CUCL AY. so... esis kis Garonne w, Buh HASSE Mee aes 175
Certification Ok > Goawcnasis cad oa odew ewe enced a eww oem ae Baal es 176
isnot AsslenMen ties sys see heed a sale Geass Bs one e KA Maes ee aRRR DS 176
COLLATERAL SECURITIES, provisions for sale of..,........... 13
CONDITIONAL INDORSEMENT, party paying may disregard con-
Gition “sasrnsaniegcwag cahag Paes tiges tele snk ee alegmie wea tees 61
indorsee holds subject to rights of indorser.................. 61
CONFESSION OF JUDGMENT, provision for..............02000% 13
CONSIDERATION, presumption aS t0.............ceeeeeeee 41, 42
What. Constitutes ...6 6. cae cn ees dete e eb bee nen conan eee 43
antecedent: CEDt. 18 io... sii iai 26 side eke s doten coo 4 Hes bos HOR GS Oe are 43
absence or failure of is defense............... ccc cece eee eee . 49
partial failure of is defense pro tanto..............ceeeeeecee 49
accommodation parties ......... cece eee cee cece ete ete eeee 53
CONTINGENCY, instrument payable on is not negotiable.......... 12
CORPORATION included in word “person”............0.e0.ceeee 179
CURRENT MONEY, designation of particular kind of............ 16
DATE, absence of does not affect validity of instrument........... 24
presumption as to date........ cesses eee e erect ee nnee 19, 20
evidence to show mistake as to date............ cc cece eee eens 24
instrument may be antedated............. cece eee eee teens 20
MAY’ De: POSE-CACEG |. swseigegsrsnaiers vtec eG desiale ang, eran Sew te-“ehetlette wea 0 elas 20
when date may be inserted, ........... cc cece cee ccc ee ee enees 20
insertion of Wrong date........... cece cee cece cece eeaes 20
alteration. Of Gate. sicwiwcs ssa ects basse ee goede ees 155, 156
from what date law takes effect............. ec eeeeee eee eneee 180
DAYS OF GRACE, abolished... ........... ccc cece cece cece eee eee 115
DEFENSES, when instrument subject to.......... 0... ccc eee wees 91
Who: liable: 0. scasscisewd cs hewwasdsemmecanieeves en ieee sesaw 91
DELAY, when delay in presenting for payment is excused........ 111
in giving notice of GiShONOT........ ccc cee eee eecee cree en cee 128

in presenting check............e0.. we aids ss eRe Fee Ribena 175
INDEX. 189

PAGE

DELIVERY, meaning of term........... sidbuateenweedenwai es ATS
of incomplete instrument....... apadadivets dimen Rea Soe aee Mees 21
contract revocable until delivery..............0ceceeeees 21, 22
presumption as to delivery....... id sceoeN oh eget sceneguncs 21, (22
evidence to show terms of delivery..........0...eeeeee . 21, 22

is negotiation of instrument payable to bearer................ 57

DEMAND, INSTRUMENT PAYABLE ON, instrument must be pay-

able on or at determinable future time............ aciailaianes 8
instrument expressed to be payable on............. sarsencwed 18
payable at sight.................. ih feb idete Io sp aeana teeters 18
payable on presentatjon............ ini iba bird hig $a duets laos BcmgaSrane 18
when: ‘no: time: expressedii'.c sncoactawkaice nts Galea qieewaaiasun 18
instrument issued, etc.,,when overdue is payable on demand... 18
instrument payable on demand negotiated an unreasonable

time after its isSUC.... 0... cece ee eee tee eee eenes 14
when instrument payable on demand must be presented..... ; 108

DETERMINABLE FUTURE TIME, instrument must be payable at. 8
WHA TSives sa ens Swans Rel Sy eres Oo Ces hee toe eee Oe et ere 12
fixed period after date or sight is......... 0... cece ee ee ee eee 12
OD, OF BELOKES: ARSA CUMS: TS ii sie. cise sees is og Wasa Stn enter eens AS OR 12
on or after event certain to happen is.......... ce eee eee eee ee 12

DISCHARGE OF INSTRUMENT by payment on behalf of prin-

CLE GS DLOL™ so s.55-5.5.4icsvseant teddeiisustn srw secsebusrepsoecdoraian ates Sead -ahae teste 130
where principal debtor becomes holder after maturity........ 130
Dy \CANCeMALON: 024 guise lias sane ykay ces shes acne satin geouns Seg ereceis elo 130
by Other ACt vcs cise tte ar at eee eee cee tee oad anew oe 130
by payment by party accommodated............ ccc ee eee e cues 130
of one part of a bill drawn in a set........ ec eee eee cee eee 172

DISCHARGE OF PARTY SECONDARILY LIABLE by discharge

Of ANStTUMENE. a eacciernscie ceoncnwcs dle Raw we eee Nae ei . 137, 147
by cancellation of signature.......... cece eee eee eee eee eee 137
by discharge of prior party............... Si seiwe keke eee 137
by tender by prior party....... ccc eee cec ee eee eee cence teens 137
by release of principal debtor............ cece ec e eee eee 137
reservation of right against surety............. cece e eee ee eee 137
extension of time, when will discharge......... RAMS ERR 137

DRAWEE must be named: or indicated in instrument............. 8
not liable until acceptance......... ccc cece eee eee ee eens 162
pill may be addressed to two or, MOTre.............-. ee ee 160, 161
but not to two or more in the alternative................ 160, 161
time allowed in which to accept.............. i lngan apidaeais bonwesmantesls 162
retaining or destroying bill liable as acceptor................ 162

DRAWER, instrument payable to order of................06. soe, WS

engagement of by drawing Dill.......... eee cee tee e tenes 94
190 INDEX.

DRAWEE—Continued. PAGE
BAMISSION: Offs 5.o:cjeie-s e's aisard: 'e sar'easd s'sieuiewie'e @ajewiee’s See sessed . 94
liability of ...... Sie DEW AS SAGES Faas Mee ES some asae. “92
may negative liability, ....... cep cece eee reece tee recvegeeee 93
existence of admitted by acceptor...............- sepia e paoeeiats 95
when presentment not necessary to charge.............-..--. 111
right of recourse to........ Cr ec . 114
notice of dishonor must be given tO..........e ce cee eee ee veces 118
when notice of dishonor need not be given to...,..........+.. 128
when released by failure to present bill for acceptance........ 164
liability of, where bill dishonored by non-acceptance..... «ses. 166
when protest necessary in order to charge......... Shane. praca. ustiers 166
of check discharged if holder has check certified.............. 176

DUBE} COURSE! 6:53 s260 esa neds seniaos sdae cme es Sodes iat Wada ewe 74

DURESS, instrument or signature obtained by.......... abe Sa share 15

EVIDENCE, admissibility of evidence to show agreement among

AT COLSOLS) giceta ica cig ay ete see ace tae Gstesing we avanite ae n Ghana eae aye tg Sig Seat 105
of agency, how shown..... ‘CERES 0G 9 SED CA Re eR eE ba ws aL
burden of proof to show cancellation.....................0055 154
drawer admits capacity to indorse........... ccc eee e eee eee 94
holder deemed prima facie holder in due course. ............. 92
to correct ambiguities....... 4 ee ek Hees a Sa REE NBO ee ae 24
to show order in which indorsers are liable................+.. 105

EXCHANGE, provision for...........eeeeeeeees Nice hacg a abril idee Oe 11

EXHIBITION OF INSTRUMENT, when necessary............... 110

FICTITIOUS PERSON, instrument payable to order of is paya-

ble: to DCAreNr saci ss ea vow see vs seared Mihaly y ealee 18, 19
presentment for payment not required where drawee is ficti-

tious person....... isp ceccadeab ave -aveysabtounst Wvaeeptierd 4s lorena as Siatagatens --. 112

FIGURES, where there is a discrepancy between words and figures. 24

FORBIGN BILL, What iS ees css os eseties eee tstseas ames eWEEK O84 161
must be protested...........c cee ee cee eeeees dos Neate dee Sieie sb Fw 129
FORGED SIGNATURE confers no right.................0008 37, 38
when party estopped to allege forgery......... cikemesiae “Ol; 38

FRAUD, instrument or signature obtained by.........ceeeeeeeeee 5

GENUINENESS, warranty of where negotiation by delivery....... 99
warranty of by general indorser....... Stiniaud d:d.ayavatece gheyaeroiocwee er LOO.
acceptor admits signature Of Grawer........cceeeeeececeesees 95

HOLDER, meaning of term....ccccccscccsscceccescevcceccsevese LID
INDEX. 191

PAGE
may sue in his own name............e0005 aiwiielwtAlew ee sreswe sy “C4
may receive payment............ cece cece eee e eee siiee carnieeses OF
rights of where bill discharged by non-acceptance............. 166
duty of where bill not accepted............0.ccceececs aiisiele si 166
refusal to receive payment for honor...........cecececaceoes 171

by having check certified discharges drawer and indorsers.... 176
of check cannot recover of bank on check until it accepts or

certifies: the Sa Me i s5coeacceaue as ucy aids Wise Fees ee ear ae eaten es 176
HOLDER FOR VALUE, what constitutes....... .......eeeeeeeeee 48
person Laying len iS seek cc dea ee ew ees cena s wa pnee essay ee 48
HOLDER IN DUE COURSE, what constitutes................0005 68
WHO? IS NOU gia xea Seg coi s Sistem gis eak cauras 2a-a ORS M ee os 74

in case of instrument payable on demand............. .ce00-8 74
where full amount has not been paid before notice.......... .. 15
what constitutes notice........... ccc cece cee teeta tenes 83
holds instrument free from equities.............. 0c cc eeeeeeee 87
may recover full face value....... ccs eee cece een cece neceeee 87
rights of person claiming under holder in due course......... 91

when burden to prove that he took instrument in due course.. 92

HOLDER OF OFFICE, instrument payable to order.............. 18
HOLIDAY, when day for doing act falls on............0ceee a ce eee 180
instrument falling due On.......... cee ccc ec cece eee ence 115
What: Gays! ANG see ccoels.c ates breksaseoa a suabceed. a eamtind a aiaiaus: Sie eine 181
INCOMPLETE INSTRUMENT, filling blanks ..............2.0065 20
not delivered. .06: 36 nea sles aha en eae sa OR FS dee Be LE RYE WS 21
acceptance Offs. sede sss wadie sta os ideation Mew sew hee eee 162, 163
INDORSER, where character not clear, signer presumed an indorser 24
when person deemed SUCH........... . cece eee c cece teccncces 96
irregular: INGOrserss vise eya gaa 64aeaR HE MSS 6 Ree Vs Mee Ne OS 98
liability of where paper negotiable by delivery...............- 105
presentment necessary in order to charge......... aa cavavebeauiaversiatls 100
order in which indorsers liable.......... ccc cece cece cee cw cece 105
when presentment for payment not necessary to charge...... 111
Tight. Of TECOUTSE CO). ccccsieses cies 6 gcse 6 os sue a bare ee Fue Ow ace 114
notice of dishonor must be given t0........... cee weer ee eees 118
when notice of dishonor need not be given to................- 129
What Will. discharge. : sscec. 280s sswadec stares Hawi cece eae 137
payment by does not discharge maker............cceceaeeeees 147
where released by failure to present bill for acceptance....... 164
liability of where bill dishonored by non-acceptance.......... 166
in what cases protest necessary in order to charge...... Gates 166
liability of where he indorses different parts of a set...... 171, 172

of check discharged by delay to present.......... sis Case evew LTS
192 INDEX.

PAGE

INDORSEMENT, meaning of terMm............ .ceeeeeeeeeeeeeees 179
instrument indorsed in blank payable to bearer...... eee 18, 19
by infant!:.c cscs: ude ys soiaa ay nekw seas Ae i ods Wena: BT
bY COrporatiOns:<s.¢ </aasevecegiod oe,6 Salas} catenins kG tid ue ces nue sou ST
required for negotiation of instrument payable to order....... 54
must be completed by delivery....... sa RGis se Wey Cael Te 54
must be on instrument......... cc cece eee eee eee eee renee 56
Or On an allONes sieges scale sec toe eves Geeks onesie ds Pacigw o43% 56
signature alone sufficient............ dei nal ea dee Baas Saleem tok ace 56
must be of entire instrument......... 0. cece eee cece wees 56
hinds? Of 201 jhg.ssiictewhciaees eeeaignenaes Lou Sraeeta ees aes 56
special indorsement.es cccives ccs ccewe cannesede see e ene . 56, 57
indorsement in. Dlaak:. « s:c.ce0k sedge oe eee 84s Oe Vee sate es 6% 57
how blank indorsement converted to special indorsement...... 57
WHEN: sEStPIClVEs.. canes caine oad Dade arya odin amos ees 58
restrictive indorsement prohibiting further negotiation....... 58
restrictive indorsement constituting indorsee mere agent...... 58
restrictive indorsement vesting title in trust................. 58

restrictive indorsement authorizes indorsee to receive payment 58
restrictive indorsement authorizes indorsee to bring action.... 58
restrictive indorsement authorizes indorsee to transfer his

Tights AS) INGOTSECs 2.0.06 cc akae ees wads Se RES SS ae 58
effect of qualified indorsement............. ccc eee eens 60, 99
qualified indorsement does not impair negotiable character of
THe: “INSEPUM CNUs 5 aves sy sieatanie stake @laveae ae Pauses ela eteasr heehee 60
of imstrument payable to bearer........... cece ee eee eee eee 61
where instrument payable to two or MOTe..............00005- 61
DY GASH GT. e575 assed oe: dudnee Scale wanes, god Bina ayeun Bre mabe toa reaueuaae 61, 62
by -fistal Off COT iasaiccwcasinanweisiieuagade neste sadese 61, 62
where name misspelledcss cass cas coe ceay bos Hood eek eee Oe ee ED 62
where payee or indorsee wrongly designated.................. 62
in representative capacity........ 0. cc cece eee eee rece wees 62
presumption as to place of.......... 0... . ee eee eee Git Reinet 63
presumption as to time of............ cee cece eee ee acoso 62
effect of striking out indorsement...............ce eee cece eee 63
when May be domes 2+. scaled sn awueale wane # aernslals.e sane 63
transfer without indorsement.............. cece eee ee eee en ee 63
rights of transferee....... eee tenn eaten eee cee e ees 63
DPLIOK COUITES 55 Sees srtsiga eae wiess oA Hone tenly nee Baa eles 64
warranty where negotiation by qualified indorsement......... 99
warranty of title in case of qualified indorsement............. 99
INFANT, indorsement by, effect.......... hapa DEG aa aR 37
INLAND BILL, what is............. 00. e ee eee ee Ve MES Cek Rae ew 161
INSTALLMENTS, instruments payable in..... ee eee 11

INSTRUMENT, meaning of term........ debtecanentea aavevateuene Gia fina Bs 179
INDEX. 193

PAGE

INTEREST, where instrument does not specify date from which
Interest LO PUD hoe eed hee ee eaeN Res Hie eC ree ee 24
does not make sum uncertain..... Darihag aes edustarguaia.cuauel were ayes eevee 4 “Od
ISSUE, meaning of termM......... 0... ccc cece cece cece cence ences 179
JOINT DEBTORS, presentment t0....... 0. ..... cee e ee eee ees tea LIL
drawees, bill may be addressed to..............0005 e..e. 160, 161
parties signing “I promise to pay” are...........0..00005 24, 25
payees and indorsers, order of liability...................00- 105

JOINT PARTIES, two or more persons signing “I promise to

Pay” pacts 's ocsecncs eae Saran Odean Tagen Hee ee se ote ales 24, 26
JUDGMENT  NOTESic3s0se00 300 see08 Hew eve miee sy eewes sa aes aes 13
LAW MERCHANT, when ZovernsS............eeceeeees iS Ale ualienerers 180
LIABILITY, no one liable whose signature not on instrument..... 28

of accommodation indorser............ cece cece cence eee ence 53

Of MAR CP ics ci oi esse Ss Nv ein ea ene Ewa nas Mahi cana pea aa RCN o 92

Of ATA WER bic ceca se ewleies Dawe 4 MSA B54 gam ea ewes Oca wile ails 94

Of. ACCEPLOL sac esaae sas eas eaeey sew ye ded Reet See eeee eee — 9

of acceptor of bills in a set........ ccc ccc cece ees e eee e eee 172

of. ‘acceptor ‘for DONO? oo fei sess os senders de eee meme ae weeds 169

of acceptor when signature not on instrument................ 162

Of irrezular INGOTSET soi oh cess ease dwaseeneegne sda Pane Dek 98

of general: ind Orsers ssc iiciissaxad so caine 64 Sew EET RES 8 hehe Sas 100

of indorser where paper negotiable by delivery............... 105

order in which indorsers liable............... cee ee cece ceeees 105

of sazentor brokerid opie s v4 wis ss 4 NO WOW RAE BWR OO WSS 25 105

of holder who indorses two or more parts............-.05- 171, 172

of persons primarily liable... 1... cece eee eee ences 179

of persons secondarily liable............... cece ce eee eee 114, 179

LIEN, person having is holder for value................ce eee eeee 48

of payment, provision concerning.......... cece eee ee eee eee 13

MAIL, miscarriage in,.does not invalidate notice of dishonor...... 124

MAKER, instrument payable to order of................0005 18, 173

liability of...... afar aus dich ces Brey asad au veges, Was a Raa ea Coe Hea, onengee gars 92

admission of............. Sits hovkaniied eka Gaeta as Sine 92

demand of payment not necessary to charge.............-..5- 106

MATURITY, timid: Offic. i eicicwites same ek tee te aaate ot dicots es Qausle eee. 115

of bill, accepted for honor..... slates 9 far aisha tie! Biaie Gia Weare Sveretade DEA 169
NEGOTIABLE INSTRUMENTS, “instrument” means negotiable

instrument ...............4. oO BS aa bilan deacons Sek. diced 109

must contain unconditional promise.............. ag sedis 8

must be for payment of sum certain............ siatesa eee aia 85. 11
194 INDEX.

NEGOTIABLE INSTRUMENTS—Continued. PAGE
must be for payment of money only............cce cee eeeecees . 8
TMUSt DE Ai WHITINE ie sce Sek Gon Eee» wraehblerde Da ad ae ece dae 8
must be signed by maker or drawer... ............ee eee ceecee 8
must be payable on demand or at determinable future time.... 8
must be payable to order or bearer........... cece eee cerca eee 8
statement of transaction does not affect negotiable character.. 11
indication of particular fund does not render non-negotiable... 11

order to pay out of particular fund not negotiable............. 11
instrument payable on contingency not negotiable............ 12
provision for sale of collateral............ 00. eee e cece ee ee enee 13
provision for confession of judgment..................-..00e 13
waiver of benefits of law................ houda chek yes a eELE El SS 13
option to require something in lieu of payment in money.... 13
omissions not affecting........... cece eee cece eee twee eens 16
not dated...... igs Seige ae Rica Tava lars, hed ¥ Row Wahepteans “sve llar Dwele eae 16
not specifying value Ziven........... cc cece cece een ee eees 16
not specifying place where drawn........ 2.2... eee eee cece eee 16
not specifying place where payable. .........-....eseeeeeeeee 16
bearings: Seal accsaigak tina nt ahaa s Mane Oe aaa cies arse ew eens 16
designation of particular kind of current money.............. 16
instrument continues negotiable until discharged or re
strictively indorsed. ........ 0. cece cece eee e ence eee eens 63
NEGOTIATION of post-dated instruments..................0 00 eee 20
TUES | ZOVELRNINE geod 'e-d.5 seatars eae digoe e erdes AGpedy eee a salen 's ermrarerelens 54, 64
what constitutes negotiation ......... 6... eee cece eee eens 54
of instrument payable to bearer......... 0... cece cece eee 54
of instrument payable to order.............c cece eeeee Saye rks 54
DYE PLTOR” WAaRey. sia ss secs apisnsisaen ge Seraoeseistay a «cg Witeabintes ora ain Ba au liabhe arcana adhe 64
party secondarily liable paying instrument may again nego-
tiate: 1s saccades dtieae eo eaie eas Stet 9 2 PARES date Soho 147
when drawer and indorsers released by failure of holder to
MOSOCACE DIMMs. d:4 wis a sare 4 where wk Mela Quek wales aeatetabong gees 4a sees 164
pill must be negotiated within reasonable time............. 164
‘Of bills ‘SetSinee oes ys aces Dames oH ONE Sas POE SS 171
NOTARY PUBLIC, may make protest..................0000- 167, 168
NOTH, Meaning, Of TerMs., cee. eneds sewed Os LOD w Rae g eee acehinee 179
NOTICE OF DISHONOR, to whom must be given................ 118
rules 2overninGics's cis sos eel od kee s wa oho ODE a LES 118, 129
must be given to indorser.......... cece ccc eee eee 118
must be given to Crawer........ cee eee cece eens Sear ares 118
by whom may be: Given ico. ecw cien oe0% 6 a dees owe ree BES ek 119
Notice: DY -ASENts aa sss nied 6449s v caves 2 Heese o4 Hewe KOA 119, 120
to whose benefit notice enures........... cece eee eee ees 120
INDEX. 195
PAGE
when notice sufficient.................0. s vileisine Sieelstiaereoion aa abZ0
notice need not be signed............... ar ata eewtets skeawe ees .. 120
form of notice... 2... . cece ccc cc eee fp taudaaeeats Sviteedvayorateneuaen 121
may be delivered personally............. Vie ea as Gye Gare eee 121
may bé-sént: by: Mail. scence cou dcaw eaerreewraaso esas Beare BEE 121
may be given to agenitene sows ee eed cas oneness aed hassle eaves 121
WHERE: “Party” CAG oi 5 a ceio Zcess aceite sadicud syncs’ esduereaieienecd aaa anvernas dees 121
TO) DATUM ETS is shia: wcletesad ate wyernaea se xeerdorrecios cua aah Ogio Be eels adee nde 121
to joint parties not partners............. ccc eee cece eects 122
to: bankruptivsscsace weeuep ace dee eee ORs deen Es Rass dino alenavics 122
to assignor for creditors......... 0... ccc cece cece eee e a ce eeees 122
may be given as soon as instrument dishonored............... 122
where parties reside in same place............ cece ec ne cease 122
where parties reside in different places...................00. 123
when notice deemed deposited in postoffice................... 125
miscarriage in mails does not impair validity of notice....... 124
time in which indorser to give notice to prior parties.......... 125
where notice to be Sent....... ccc cece ccc e cece cece nee a cence 126
when party adds address to signature................00.e0euee 126
where party has not been given address.................0000- 126
where he lives in one place and has office in another.......... 126
where he is sojourning in another place.................0005- 126
when notice actually received this is sufficient................ 126
WALVER? Of wo tare itera Seaneranddie te ever ihipanO ane Bieiecanee wiealaaeane Rieti lnas Bre 126
waiver of before dishonor............... cece cece eee eee 126, 127
waiver of after dishonor...... 0.0... cece cece eee een ees 126, 127
what will constitute Waiver............. cece cee eee eee eee 127
waiver embodied in instrument............... ccc cece eee eee 127
waiver written over Signature........... cee eee e eee eee 127
waiver of protest, what it includes..................... 127, 128
when noticé dispenséd With... cencis cvacseecaa daa ccarowanenss 128
when cannot be given after reasonable diligence.............. 128
When. delay EXCUSE, «.. . 4 c0k cad tod N~e ed KEE OEE RES LER Rede ee 128
when notice need not be given to drawer..................05- 128
when notice need not be given to indorser.................45. 129
when instrument has been previously dishonored by non-
acceptance ....... eee eee e ee eee eens wana ees 129
effect of omission to give notice of dishonor by nonacceptance.. 129
NOTICE OF EQUITIES, what constitutes................. 2. eee 83
See “Promissory Note.”
NOTICE, where transferee receives notice before payment in full
for instrument...... #4 Sawa eee esig go ig eeee See Ba Ena ReetN S 75
NOTING: « vicccees ves 1Ly H saeewsacciwe aswawanees Tea Wiaws eee ees 168
OMISSIONS, what omissions do not affect validity or negotiable
character of instrument............. cece cece rece eee eees 16
196 INDEX.

PAGE
OPTION of holder to require something in lieu of paymentin money 13
ORDER, instrument must be payable to, or bearer.......... «. 8 18
instruments payable to....... Wf ck ieccyteufed Sie neaaees Spay ponies 8, 18
instrument payable to order of drawer.............s0cceccees 18
instrument payable to order of maker..............0000e 000s 18
instrument payable to order of drawee..............eeeeeeeee 18
instrument payable to order of two or more payees........... 18
instrument payable to order of one of several payees,......... 18
instrument payable to order of holder of office................ 18
payee must be named or indicated................+..005- 18, 19
OVERDUE INSTRUMENT is as regards parties issuing or negotiat-
ing Payable Of GEMSHG. 1.665 pap ecewae ied near eda wee een ee 18
PARTNERS, presentment t0........ ccc cece cece ccc e eee e ce eenees 111
PATENT RIGHTS, negotiable instruments given for.............. 182
PAYERS, two or More...........-..005 pie we Rie gO MSTA She 18
one of several............ eb sete eve aaah Oo iaray sya ESEG Manet Eyhesenenaue eta 18
when name not the name of any person...-.............. 18, 19
acceptance admits existence Of............. cece cece e eee wae 95
acceptance admits capacity to indorse............... ce eee eee 95
PAYMENT, instrument must be for payment in money........... 8
option to require something in lieu of payment in money...... 13
holder in due course can recover face value...............0-% 87
what constitutes payment in due course.................008- 117
by principal debtor..... ayers ek caste POMS a4 tee SRA ere ee 130
by party accommodated... . . 2... ccc cece cee eee eee te eee tees 130
by party secondarily liable.......... ccc cee eee cee cee eee 137
what bills must be protested for nonpayment................. 166
bill protested for non-acceptance may be protested by non- |
payment ............... SaeAOs Yaoe SA Sse Heme ek Ae ee aes 168
BE UNS A OG a nsck 5 6s GRRE SS Ne BE ead 8. peed a ESS DERE 172
PAYMENT FOR HONOR, who may make............... cece eeeee 170
How mad Qnuise's esse ew evan S56 sen gas Mau oe ees ee games eclers 170
preference of parties offering to pay for honor................ 170
effect on subsequent parties.............. cee eee ee ences 170, 171
where holder refuses to receive payment................0000- 171
effect of, on instrument........... cece cee cece eee eens 171
on bidder refusing to receive............. cee ewes vie vous LTT
on subsequent parties..... sng dA a a UMEG Va a eRe SE aS -+, 170, 171
declaration before payment. .......... ccc cece eee eee ae8 a apece LTO
rights of payer for homor...............005 Giiendrit dosages 170, 171
PERSON, meaning of term.......... ccc eee eee wees side gues 179
PERSON PRIMARILY LIABLE, who is..... canine ea x i ek aye .. 179
demand of payment not necessary to charge setae he eaenis weeeee 106
INDEX. 197

PAGE
PERSON SECONDARILY LIABLE, who is........ecceececccceee 179
right of recourse tO..............+e00- sivbsie inara: asia aievesecotens vers. sigue! cae

PLACH, failure to specify place where drawn does not affect

negotiable character............0.cceeeeees siete aa taaacatey ~ 0
presumption as to place of indorsement,..... sr ushaete sateawics oo. 63
of presentment, what is proper place......... enemies ween sas 109
alteration as to place......... sAeearne awe ee seceees. 155, 156
POST-DATED INSTRUMENT, negotiation of...................- 20
instrument not invalid because post-dated.................04- 20
POST-OFFICE, what constitutes deposit in.............. cece wees 125
PRE-EXISTING DEBT constitutes value.................0 eee ee . 43
PRESENTATION, instrument payable on demand................ 18
PRESENTMENT FOR ACCEPTANCE, in what cases necessary.... 164
where bill payable after sight...... 0.0... cece cece ee ee ce eee 164
where required to fix maturity.......... 0... ccc cece cee e noes 164
not necessary where payable at day certain or at fixed time
ALCEM: <a t6 iss eco smaueatete-deretrecendeaienite ats Medios ate eee Oa nite 45 164
where bill expressly stipulates for............. cece eee eee ees 164
where bill not payable at drawee’s place of business or residence 164
when drawer and indorsers released....... Sik eee age palate x 164
HOW: PFESENCTIMMENE MAG Cie iine es casiacsisi g:orsisesevine 9 tuansiieng < plduierer > aie svenseacaw'e 164
must be by or on behalf of holder.............. cece eee eee 164
must be at reasonable hour............ ce eee eee eee cece eeeee 164
Of: BUSINESS: CAV. i0.6 6085 Gas suadkia ad auaeiard wee neerdtnaiede amma 164
before bill is overdue........ Bsa inviise dacd anteeterilas er ava oatatajlaneelasiavets .. 164
must be to drawee or some person authorized to act for him... 164
where there are two or more drawees not partners.,.......... 164
where drawee iS dead....... cc cece cee cece cece ee we sceeees 165
where drawee is bankrupt or insolvent.............. hie ka ex 165
on what days may be made............ esse eee e eens So wae 165
when time insufficient.................. UD eee Beers drank Gansta saicbes 165
when excused....... a\erilalsapanres Sieuieudaanaponsundnecdylermcayees avalausen averse sees. 165
excused where drawee dead.........cce cece eee ee ener e ee weeex 165
excused where drawee has absconded................ savexces 165
excused where drawee is fictitious person........ ssape aero 165
excused where drawee has not capacity to contract...... wees 165
excused when cannot be made after reasonable diligence...... 165
PRESENTMENT FOR PAYMENT, necessary in order to charge
drawer Or indOrserS..........-ceeeeeeeeees aayreapieav bad aensaseee cat 106
not necessary to charge party primarily liable. .............. 106
where instrument payable on demand............ceceeeseeee 108
what constitutes sufficient presentment.............. hed cates 108

must be made on day of maturity.......... 0c. cseeeeeee seins LO8
198 INDEX.

PRESENTMENT FOR PAYMENT—Continued. PAGE
holder has entire day in which to make..............+se02--- 108
place of presentment............ee-ceeeeee ate waeekses ere 109
where principal debtor dead............ So secol leche e chneeuk 2 111
where instrument payable at bank..... Mike eS eae Aah eee oes 110
instrument must be exhibited............. 0. cece eee ee eee eee 110
where persons primarily liable are partners, ................. 111
to joint parties who are not partners......... oulneiietew as sete are 111
when not required to charge indorser..............eceeeeeeee 111
when not required to charge drawer..........-..2005 swigencd Be 111
when delay CXCUSCd......... ccc cece cece eee eee n eens eneeeenes 111
WaALVEN OL. aes se sides CaaS a ad ate sia wie eae OS eer 112
where drawee is fictitious Person............ cece eee ee cee eee 112
when. dispensed With. : 22% sccsc.ccec vis sea oisecawwe cee eee oe 112
computation. Of TIME... co cece eee wees a ba cee eee eee eee 116
instrument falling due on Sunday............ cece cece eee ee 151
instrument falling due on holiday................. cee eeeeeee 151
instrument falling due on Saturday............. cece eee eee ee 151
not necessary where bill has been dishonored by non-acceptance 166
how made to acceptor for Honor............eeee ee eeee Pow eee a 169
within what time check must be presented................... 175
@ffect Of delay’. ¢ sick ess weaned 88 Marae couleien ee agile semen aac Pw Lie

PRINCIPAL, not liable unless his signature appears on instrument 28

PRINTED PROVISIONS, written provisions prevail over......... 24
“PROCURATION,” signature by.........- (Pda Vou eee ee ee eRe nawe oT
PROMISSORY NOTE, term “note” means........... . 0. ee eee eee 179
ambiguous instrument may be considered bill or note......... 24
when bill may be treated aS...... eee eee ce cece eee eee eee 161
drawn to maker’s OWN OFder. ...... eee eee cece eee rete eee eeees 173
UCANEE: eee we weed We dition scene seus Pewee Eee eee 173
PROTEST, what waiver of includes...............c cee ee eee 127, 128
construction of term...... sek cites ced ee bee eee V4 eee 127, 128
may be made in case of dishonor of any instrument...... 127, 128
not required except in case of foreign bills....... grerbuaie® 127, 128
necessary in case of foreign Dills.......... cece eee eee eee 166
unnecessary unless bill appears on its face to be a foreign bill. . 166
how made...... o3e eS ANE RS RS ts SOE MEER AE Se Rome ns Foe S 167
must be annexed to Dill... . eee ee ce ee tee eens 167
must be under hand of notary.......... cece cece cece ee eee 167
must be under seal of notary..... cece ee eee eee ee eee 167
when to be made..... py a0 lah sae d ba av RteeGr sg MetaTlanes oa blaine ua bis rape dee: 167
must specify time and place of presentment...........-....-- 167

must specify fact that presentment was made................ 167
INDEX. 199

PAGE
cause for protesting the Dill........... (ewaweewscrereencanres, LET
demand made and answer given....... Sain tiettvena et sia yWvaneies auveteeG 167
manner of presentment................45 ois apace sSaccendiene: elosaualie's 167
may be made by notary public............ cc cece eee eee 167, 168
may be made by resident..............cc ccc eeeeceeeere . 167, 168
WIE RE AMO o 5:05 9. ocscace co!dSyantncisnst-Ceark giscaimaldaveiave aye ataeaseuse yn eaueesavaralotes 168
when dispensed With, ......... 0... ccc cece cee cee eee en eens 168
for ‘Detter Securpty cco oactsalnquniausyeredscy evens 6 ones sees 168
both for non-acceptance and non-payment...................2. 168
ERLEMGINE' PLOCESE: sale. Seedegessaiesdsreispaveiard cord Aaa asap nino do bare ON werndsinte 168
before maturity where acceptor insolvent..................05 168
Where: Dill. ds: loStsawane 5 snes a warns camara Sxawe eae. cm Foe 168
of bill accepted for honor............ SES AB Ruane ines 168, 169

REASONABLE TIME, what constitutes..................0. 179, 180
instrument payable on demand must be presented within...... 74
RBFEREE, in. CASe Of NC. wicca sceceesoececeina ie iecd-eue ese gasp veuadeeie angen 161
RENUNCIATION, Gff€Ct Of... cccuk ccc ckei ne eene ean eed yew due bea ne 153
BOW SHAGG: ocoas anew es pean Ee KHee EK RRO eV ERES AS eed CKO 153
REPEAL, Jaws) TOPCAlE . icc sasecges scodecgis Fw RoR BE Oe ecrveuete cere acsutane 184
REPRESENTATIVE CAPACITY, person indorsing in may negative
Personal, TAU VY sseaiccineoostaces sraycdes ed eateuee seemed shereisatenl seated 62
SATURDAY, instrument falling due on............. ec cece e ee eee 115
SEAL, does not affect negotiable character...............00ceeeee 16
SIGHT, instrument payable at sight is payable on demand........ 18
SIGNATURE, no person liable whose signature does not appear
OD CHE ADStHUM SNE yaad cvcacatecsiui ae araaieie Cass Neu dh marelel swale es 28
DY ASN teas c onigheneataue pysess te Pitts uses Gis Sustglns eiaiadl a 31, 35
by “‘procuration’”’..%.cce0s.40escu anodes emee de eaew ashes sealnn 37
LOTLESA, SUSU ACME ois. vcsecceaie eee hues hice ie Shoe Dycuanenevard Aesduuslaacnamls 37, 38
acceptance admits genuineness of drawer’s signature,........ 95
STRIKING OUT INDORSEMENT, effect of............... 0000s . 63
WHET “WAY DE. WOME csc ese alepace dieses ansaid Wesel leuenacesie: sere lecbusue 8 ethvone 63
SUM CERTAIN: “what: ISvsncce seduce cad OntGveataiea de Seine ee atane 11
SUNDAY, when day for doing act falls on. .......... 0 eee ee eee 180
instrument falling due ON... .... cc cece cece eee eee ee eee eee eee 115

TENDER, ability and willingness at place of payment equal to.... 106
TERMS, when sufficient....... wee wale acer w alee sey MAGEE Se eS . 19
200 INDEX.

PAGE
TIME, how computed........ wipes ob sigyenerale 6 Rais a pinwintes cwrieen se LLG; 180
when statute to take effect..........csceceecececcecececacses 184
of indorsement ........cc cee ceeeeee bo RWS S Need 4s wow tes eee! 6S

TITLE, burden of proof where title of prior party defective........ 92

when defective............ ih bod ‘armubndhiond Svaveudus Jima S Wasied covaeee UD
warranty of where negotiation by delivery........ wha ecetlecels saw 99
warranty of where negotiation by qualified indorsement...... 99
warranty of by general indorser..............5+ Sreceie oie ea croea LOG
TRADE-NAME,. person signing in.......... eet bai Sell sl ewe dvelalate dob ata 28
UNCONDITIONAL PROMISE OR ORDER, what is............ ei).
order to pay out of particular fund is not........ baeae sees eq LIL
USAGE, regard to be had to in determining question of reason-
DIS MUEUINIG  sieeitd ciane chars aden tedious Ae Wownd Se emule bee 151, 179, 180
VALUE, meaning of term......... 0.0.0 e cece e cece eens eh helena 179
failure to specify does not affect negotiable character of in-
StTUMit ~ Aadeac iow eon etebee eben aac umemoee nee s 16
what constitutes.......... sccauihetecb (Riga as wie da Gyr lo tauauanolcueravavnsenaibes Staves 43
pre-existing debt in......... os Siw giaisliocah ates ahabnaawts (peli sviaiencecsvaneionederes . 438
what constitutes holder for value................e cece eeeenee 48
lien on instrument constitutes. ........ 0... cece eee cece eee 48
WAIVER, of benefits of law by obligor............. cece ween eens 13
of presentment for payment............ cece cece cence ees 112
of notice of GiShONO? sec iis ceceds severe es cae eta sees s Cowen. 126
when embodied in instrument, .............. ce eee eee eee 127
when written above signature.......... ccc cece c eee eee eens 127
of protest, what it includes............ccceee ee cee ences 127, 128
WARRANTY, where negotiation by delivery................0000% 99
where negotiation by qualified indorsement.................. 99
OL ZSNUIMENESSS?® suisse sosvviocticnae. taste oh «Aton eave senlnaie’s Audie eae S 99
when warranty of genuineness not implied................... 99
of capacity, of prior parties where negotiation by delivery.... 99
general indorser warrants that instrument is genuine......... 100
general indorser warrants, that instrument is what it pur-
ports! to: Dewees sseues das. es saree ews ahplela daudbsnayte a a.sn Gusta 64 100
general indorser warrants, that he has a good title............ 100
general indorser warrants, that prior parties had capacity to
CONTAC cee sisexighsacs grcidagk ste tetenaderen diez sats eet eadce garages 100
general indorser warrants, that instrument is valid and sub-
SISTINE” sicdoees dc nomestasinns Sahara ss imeesivaiwme viaseeres 100
“WITHOUT RECOURSE,” effect of term...... ce. ccee eee eee neee 60
WRITTEN, what included in terM............ cece cece ewes eee eeee 179

WRITTEN PROVISIONS, prevail over printed............se0002. 24
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