§ 47. As to the statement of advice, it is usual for a Bill of Exchange to state the account to which it is to be charged. If to the account of the drawer, "put it to my account" is usually inserted; and if to that of the drawee, "put it to your account;" and if to account of a third person, "put to account of A. B.”

Sometimes "as per advice," or "without advice," is inserted; and when the former, the drawee is not bound to accept or pay until such advice is received. If he does, it is at his peril. Sometimes provision is made, in the bill, that the holder in case of need shall apply to another drawee; by which is meant, that if the first drawee refuse to honor the bill, the second shall be resorted to. The holder is bound to apply to the party so indicated, and he may accept or pay the bill without protest. The usual form is: "In case of need, apply to C. D., at E.11

1

§ 48. The words, "value received," are commonly expressed in bills and notes, and it was formerly held that they were essential to their negotiability;2 but they are not now regarded as at all material, being considered as implied where the other elements of negotiability exist.

3

And even when the note is not negotiable, if it contains a promise to pay money, it is prima facie evidence of indebtedness, whether it contain these words or not; and the holder may recover upon it without alleging or proving a consideration.*

6

DELIVERY.

§ 49. A bill or note is not considered as executed or binding until delivered; but a delivery and at the time of date, will be presumed until the contrary appear. However, if payable at a certain time after date, the time will still be estimated from the date, no matter when the paper was delivered.?

1Chitty on Bills, 185; Byles, p. 182; Story on Bills, 2 65.

2 Byles on Bills (Sharwood's Ed.,) 592; Edwards on Bills, p. 158; Priddy vs. Henbrey, 1 B. & C., 674, (8 E. C. L. R.)

Arnold vs. Sprague, 34 Vt., 402; Cowisia vs. Tedlie, 7 Casey, 506; Townsend is. Derby, 3 Met., 563; Hatch vs. Trayes, 11 Ad. & E., 702, (39 E. C. L. & R.;) Benjamin vs. Fillman, 2 McLean, 213; Kendall vs. Galvin, 15 Maine, 131.

4

Peasley vs. Boatwright, 2 Leigh, 195; Cunningham vs. Herndon, 2 Ca'l, 530. 5 Marvin vs. McCullum, 20 Johns, 288; Chamberlin vs. Hopps, 8 Vt., vs. Churn, 18 Grat, 801; Hopper vs. Eiland, 21 Ala., 714.

94;

Ward

6 Lansing vs. Caine, 2 Johns, 300; Woodford vs. Dorwin, 3 Vt., 82; Roberts vs.

Bethell, 12 C. B., 778; Sinclair vs. Baggaley, 4 M. & W., 312.

7 Bumpass vs. Timms, 3 Sneed, 459; Snaith vs. Mingay, 1 Maule & S., 87; Barker vs. Sterne, 9 Exch., 684.

A bill or note, as well as a deed, may be delivered as an escrowthat is, delivered to a third party to hold until a certain event happens, or certain conditions are complied with; and then the liability of the parties commences as soon as the event happens, or the conditions are fulfilled without actual delivery by the depositary to the promisee.1

A bill or note as an escrow can not be delivered to the promisee; 2 but if it is so delivered and transferred by him to a bona fide holder without notice, it will be binding.3

If the party who has signed or indorsed the instrument die before delivery, it is a nullity, and can not be delivered by his personal representative; but if advances had been made on the faith of a delivery, then the promisee or indorsee would be entitled to a delivery.

§ 50. A bill or note signed and delivered on Sunday, as between the parties, is invalid; but if delivered on any other day, it is valid, though signed on Sunday; and between the parties it is competent that it was signed and delivered on a different day, though dated on Sunday. And if dated on another day, but actually signed and delivered on Sunday, it is still valid in the hands of a bona fide holder without notice of the defect; and it seems that an accommodation note, made on Sunday, but indorsed by the payee on Monday, is valid, as it then, for the first time, becomes a completed contract. JOHN W. DANIEL.

1Couch vs. Meeker, 2 Conn., 302.

2See 1 Pars., N. & B., 51.

3 Ibid, Vallett vs. Parker, 6 Wend., 615.

Clark vs. Boyd, 2 Ohio, 56; Clark vs. Sigourney, 17 Conn., 511; Bromage vs. Lloyd, 1 Exch., 32.

5 Perry rs. Crammend, 1 Wash., C. C., 100; 1 Pars., N. & B., 49. Lovejoy us. Whipple, 18 Vt., 379; Drake vs. Rogers, 32 Maine, 521; Aldridge vs. Branch Bank, 17 Ala., 45; Bank of Cumberland vs. Mayberry, 4 Hubbard, 198; Finney vs. Callendar, 8 Officer, 41; State Bank ts. Thompson, 42 N. H., 369.

Ibid.

Transfer of Negotiable Paper.

§ 1. A bill or note payable to bearer, or indorsed in blank, may be transferred like currency by mere delivery; other bills and notes by indorsement of the transferrer's name thereon, and delivery to the indorsee,' unless they are not expressed to be payable to the order of any person, or to bearer, in which case, unless by statute, they are not negotiable in the United States and in England; but it is otherwise in Scotland. But if the paper be payable to A. B., or order, and A. B. indorse it to C. D. without adding "or order," C. D. may nevertheless transfer it by indorsement, and it retains its original negotiable character."

While commercial paper payable to bearer, or indorsed in blank, may be transferred by delivery merely, yet if the payee put his name upon it, and transfers it, he is liable as an indorser, such indorsement being valid between the indorser and subsequent indorsees; and the holder of paper payable to bearer and indorsed, may sue upon it as bearer or indorsee at his election."

§ 2. If a note be non-negotiable because payable to a certain person only, should he indorse it, it will be binding upon him; and his liability to his immediate indorsee will be the same as upon the indorsement of a negotiable note; but the principle is not extended to subsequent indorsees. And if indorsed by the payee payable "to order of" indorsee, it will be negotiable as between the holder and indorsers, though not as to the maker.

1Wookey vs. Poole, 4 B. & A., 1; Myers vs. Friend, 1 Rand., 13; Rees vs. Conococheague Bank, 5 Rand., 326.

"Byles on Bills, (Sharswood's edition,) 258.

Thomson on Bills, (Wilson's edition,) 173.

'Muldrow vs. Caldwell, 7 Mo., 563; Lea vs. Branch Bank, 8 Porter, (Ala.,) 119; Scull vs. Edwards, 8 Eng., 24; Potter vs. Tyler, 2 Met., 58; Blackman vs. Green, 24 Vt., 17.

Bates vs. Butler, 46 Maine, 387; Hodge vs. Steward, 1 Salk., 125; Hill vs. Lewis, 1 Salk, 132; Burmester vs. Hogarth, 11 M. & W., 97; Brush vs. Reeves, 3 Johns., 439; Gilbert vs. Nantucket Bank, 5 Mass., 97; Eccles vs. Ballard, 2 McCord, 388; Gwinnell vs. Herbert, 5 Ad. & E., 436, (31 E. C. L. R.)

63 Kent Com., 44; Story on Notes, 2 132; Chitty, 220; Bayley, 466.

"See Story on Notes, ?? 128, 129, 130; Story on Bills, ?? 119, 199, 202. See Carruth vs. Walker, 8 Wis., 252.

Carruth vs. Walker, 8 Wis., 252.

When the instrument is made payable to "order," the indorsement of the payee is necessary to transfer the legal title;' and the transferree, without indorsement, takes it as a mere chose in action, and must aver and prove the consideration. But if the transfer was for a valuable consideration, the indorsement by the transferrer, where necessary or intended, may be compelled by the holder.3

§3. As to transfers by indorsement, the term indorsement, in its technical sense, is applicable only to negotiable paper; and it is important to bear this in mind, as the effect of indorsing a negotiable instrument, and assigning or becoming the surety or guarantor of one non-negotiable, is very different. In common parlance, the word is indifferently applied to Bonds, Bills and Promissory Notes, whether negotiable or otherwise, and confusion of ideas will only be avoided by holding in view its definite legal signification.

§ 4. Indorsing an instrument in its literal sense means writing one's name on the back thereof; and in its technical sense it means writing one's name thereon with intent to incur the liability of a transferrer. The term assignment is applied to the transfer of negotiable paper payable to bearer by delivery, and the transfer of other species of choses in action. When we speak commercially of paper being indorsed to a party, the idea of its being transferred and delivered to him is included-the term indorsement including delivery to the indorsee. Neither indorsement nor acceptance are complete before delivery.

Accordingly, it has been held that where A. specially indorsed certain bills to B, sealed them up in a parcel, and left them in charge with his own servant to be given to the postman, it was held that the special indorsement did not transfer the property in the bills till delivery, and that delivery to the servant was not sufficient, though it would have been otherwise had the delivery been made to the post

'Hopkirk vs. Page, 2 Brock, 20; Hestone vs. Williamson, 2 Bibb, 83; Russell vs. Swan, 16 Mass., 314; Blakely is. Grant, 6 Mass., 386.

2Van Eman vs. Stanchfield, 10 Minn., 255. 3Rose vs. Sims, 1 B. & Ad., 521. "Orrick vs. Colston, 7 Grat., 195; Bank of Marietta vs. Pindall, 2 Rand., 475. 5Freeman's Bank vs. Ruckman, 16 Grat., 129; Bank of Marietta vs. Pindall, 2 Rand., 475; Thomas vs. Watkins, 16 Wis., 478; Dann vs. Norris, 24 Conn., 333; Adams vs. Jines, 12 Ad. & El., (40 E. C. L. R.,) 455; Lloyd vs. Howard, 20 L. J., Q. B. I. (69 E. C. L. R.,) 14 Q. B., 995; Marston vs. Allen, 8 M. & W., 493; Green vs. Steer, 1 Q. B., 707, (41 E. C. L. R.)

"Rex vs. Lambton, 5 Price, 428; Lysaght vs. Bryant, 9 C. B., 46, (67 E. C. L. R.)

man.1

But where A. & B. being partners and indebted to C., A. who acted as C.'s agent, with B.'s concurrence, indorsed a bill in the name of the firm, and placed it amongst the securities which he held for C., but no communication of the fact was made to C. personally, it was held a good indorsement of the firm to C.2

§ 5. The distinction between indorsement and assignment was well pointed out in Bank of Marietta vs. Pendall, 2 Rand., 475, by Cabell, J., who said: "The term indorse when applied to Bills of Exchange, negotiable by the custom of merchants, or to papers made negotiable by our statutes, may ex vi termini import a legal transfer of the title. But as to bonds and notes, not negotiable, the legal title to them passes by assignment only, and as to them indorsement is not equivalent to assignment. As to them assignment means more than indorsement; it means by one party, with intent to assign, and an acceptance of that assignment by the other party. The notes in question are not negotiable according to our laws, but assignable only. They might well be indorsed in Virginia and assigned in Ohio. The pleas, therefore, that they were indorsed in Virginia tendered immaterial issues, and were properly demurred to." There is no doubt that if the note had been negotiable the averment that it was indorsed in Virginia would have been considered as including transfer of title and delivery," and "indorsed and delivered" would be sufficient as to non-negotiable paper.*

EQUITABLE ASSIGNMENT.

§ 6. There may be an assignment of bills and notes, and other negotiable securities, by operation of law, or as it is termed by equitable assignment. The assignment of any particular claim is considered an equitable assignment of all securities held by the assignor to assure it. Thus the assignment of a debt by whatever form of transfer, carries with it any bill or note by which it is secured; and the converse of the proposition is equally true, that the transfer by indorsement, or assignment of a bill or note, carries with it all securities for its payment.

'Rex vs. Lambton, 5 Price, 428; Bayley on Bills, 137; Byles on Bills, (Sharswood's edition,) 265. Lysaght vs. Bryant, 9 C. B., 46, (67 E. C. L. R.) 3Marston vs. Allen, 8 M. & W., 494; Adams vs. Jones, 12 Ad. & E., 455; Hayes 18. Cau'field, 5 Q. B., 81. 'Freeman's Bank vs. Ruckman, 16 Grat., 129.

5Dunn 8. Snell, 15 Mass., 485; Titcomb vs. Thomas, 5 Greenl., 282; Jones 8. Witter, 13 Mass., 282; Waller vs. Tate, 4 B. Monroe, 529; Miller vs. Ord, 2 Binn., 382; Fox vs. Foster, 4 Penn, St., 119; Croft vs. Bunster, 9 Wis., 503.