Frederick Mortensen Hinch Edward Mills John.

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within or without the state, to be issued by the clerk under the seal
of the court. The persons to whom issued must be named therein, and
deposition must be taken on written interrogatories unless parties other-
wise agree. Written notice to be given the adverse party, unless taken
under special commission, must specify the action, name of the court
where it is to be used, the time and place of taking, and in ease the
deposition of a party to the suit be taken, it shall not be used in his
own behalf, unless the notice so specifies; it shall be served upon the
adverse party, his agent or attorney of record, or left at their usual
abode; it shall only be used against such parties as are so served.
Sufficient time, exclusive of Sundays, day of service, and one day of
preparation, and time for travel, shall be allowed. May be adjourned
from day to day if so stated in the notice. Notice by publication may
be given when adverse party is a nonresident, and has no agent or
attorney of record in the state; the publication must be for three con-
secutive weeks in a newspaper published in the county; if no newspaper
there, then in one published in the state circulating generally in the
county; proved by affidavit; deposition to be written in the presence of
the officer, by him or the witness or some disinterested person, and
subscribed to by the witness. Officers' certificate to show that the
witness was sworn to testify the truth, the whole truth and nothing but
the truth; that the deposition was reduced to writing by some proper
person, and subscribed to in his presence; that it was taken at the
time and place specified in the notice. It shall be sealed in an envelope

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§ 402] DEPOSITIONS. 257

isdoned with the title of the eanse, the name of the ofSeer taking; he
shall address and transmit it to the clerk of the court of the action,
there to remain unopened subject to the court's orders, or the request
of the party to the action, or his attorney. It must be flled in court
at least one day before trial. If taken out of this state by an authorized
officer, it may be taken in this form or in the form authorized where
taken; in the latter case the certificate shall be deemed prima facie, as
made in accordance with the laws of the place where made when it so
certifies. Sabpcena for witness shall be issued by the officer. A witness
shall not be compelled to go out of his county. Depositions may be
used only when the witness does not reside in or is absent from the
county where the action is pending; when dead, aged, infirm or im-
prisoned; when the testimony is required upon a motion, or the oral
examination is not required. It may be read in any stage of the action,
or in any other action upon the same matter, between the parties. A
deposition taken by an authorized officer having a seal of office shall
be admitted in evidence upon the certificate and signature of such
officer, under the seal of the court of which he is an officer, or his
official seal, and no other act of authentication is required. If he has
no official seal, and is not taken in this state, it shall be certified and
signed by the officer and further authenticated, either by parol proof
in court or by the certificate and seal of the secretary or other officer of
the state who is the custodian of the great seal of the state, or the
certificate and seal of the clerk or prothonotary of any court of the
state where taken, attesting that such officer was at the time of taking
authorized to take. If taken in this state by an officer not having a
seal, or within or without this state under a special commission, the
official signature of the officer or commissioner is sufficient, and when
not certified according to law, the fact neglected may be shown by
parol proof. FEES — 15c per folio and $5 for all other services.

I 402. Canada — Of witnesses outside of the province may be taken
by commission upon interrogatories in discretion of court. Open com-
mission can issue by consent of partiea.

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§ 403. Definition and Nafeore of Negotiable Instrnmeotg;

§ 404. — ^Negotiable Paper in OeneraL — A negotiable in-
strument ia any written instrument which may be transferred
by indorsement and delivery, or by delivery alone, so as to
give the indorsee the legal title and enable him to sue in his
own name. In a narrower sense it indicates those instruments
the indorsee of which, under the law merchant, takes free
of certain equities and defenses between the original parties.^

The term ''negotiable" indicates that certain instruments,
so described, are given by law a V)roperty by virtue of which
they may be transferred by the payee therein, and his trans-
ferees successively, to vest in each succeeding transferee the
title thereto, unaflPected by certain defenses to which they
might have been subjected in the hands of the immediate or
any transferer, and to which non-negotiable paper would be
subject notwithstanding such transfer; provided the transfer
is made according to the rules established to govern com-
mercial paper .•

§ 405. — ^Prondsaory Notes. — ' ' A negotiable promissory note
* * * is an unconditional 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. When a note is drawn
to the maker's own order, it is not complete until indorsed
by him."* A promissory note must contain on its face an ex-

iGye. Law Diet. i Uniform Negotiable Instni-

t Bays' Commercial Law, vol. 2, ments Law, | 184, post, p. 314.

p. 21. The parties to a promissory note

Non-negotiable paper is payable are: The maker, who makes it;

only to the payee, and mentions no the drawee, to whom it is payable;

"order" or bearer. the indorser, who writes his name

on its baek.


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prefts promise to pay money. An instrument reading: ''L 0.
U. the sum of $17.00 for value received," signed by the maker,
is not a promissory note.^

§ 406. — Certificates of Deposit— A certificate of deposit is
an instrument issued by a bank reciting a deposit of a certain
sum of money, payable on demand, or at a fixed time. It is
negotiable, if drawn properly, being a form of promissory

§ 407. — Bills of Exchange. — ^''A bill of exchange is an un-
conditional order in writing, addressed by one person to an-
other, 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 law recognizes as bills of exchange only
instruments of writing for the payment of money.'' The par-
ties are the drawer, who m^kes the bill; the payee, to whom
it is to be paid; the drawee,* to whom it is directed; when the
latter accepts it by writing his name across its face, he is
the acceptor. When the payee writes his name on its back,
he is the indorser. Persons subsequently writing their names
upon its back likewise become indorsers. Bills are either
inland or foreign. An inland bill is a bill drawn and pay-
able within the same country; all others are foreign bills.®
If drawn in Wisconsin, but dated in Illinois, and is between
citizens of Illinois, it is an inland bill.*

Is a written engagement by one 6 Uniform Negotiable Instru-

I>erson to pay absolutely and nn- ments Liaw, {§ 126-131, post,

conditionally to another person p. 307.

therein named, or to his order, or 7 Bradley v. Morris, 4 lU. (3

to the bearer, a certain sum of Scam.) 182.

money at a specified time, or on » Bays' Commercial Law, vol. 2,

demand, or at sight. Hall v. p. 28.

Farmer, 5 Denio (N. Y.) 484, afl'd The states of the Union are for-

2 N. Y. 653; see also Coolidge t. eign to each other within the

Buggies, 15 Mass. 387; Klauber v. meaning of this article. Mason v.

BiggerstaflP, 47 Wis. 551, 3 N. W. Dousay, 35 111. 424, 85 Am. Dec.

357, 32 Am. Bep. 773. 368; Freeman's Bank v. Perkins,

4 Gay v. Booke, 151 Mass. 115, 18 Me. 292; Dickins v. Bcal, 10

23 N. E. 835, 7 L. B. A. 392, 21 Pet. (U. S.) 572, 9 L. Ed. 538.

Am. St. Bep. 434. •Strawbridge v. Robinson, 10

* Bays' Commercial Law, vol. 2, HI. (5 Gilm.) 470, 50 Am. Dec.

t>. 32. 420.

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I 408. — Checks. — "A check is a bill of excbani^e drawn on
a bank, payable on demand."^* It is not a check if drawn
payable in the future, but a true bUl of exchange. Its parties
Hre the drawer, who makes it; the payee, the one to be paid;
the drawee, the bank on which it is drawn. When the payee
wntes his name on its back, he is the indorser. A check dif-
fers from a bill of exchange in that it is not due until pre-
sented, and consequently may be negotiated before present-
ment, in that the drawer of a check is not discharged for want
of immediate presentment with due diligence; in that the
death of the drawer rescinds the authority of the banker to
pay it, while the death of a drawer of a bill of exchange does
not alter the relations of the parties; and in the fact that
checks are always payable without grace.^^ Checks should .
always be presented to the bank without delay, as either the
drawer or bank might fail, the drawer might die, or check out
his balance at the bank.

A certified check is a check which has been recognized by
the proper oflScer as a valid appropriation of the amount of
money therein specified to the person therein named, and
which bears upon itself the evidence of such recognition.
Certification is usually accomplished by writing the name of
the officer authorized to bind the bank in that manner across
the face of the check." An architect's certificate notifying
the owner of a building that a certain sum was due the con-
tractors, which was indorsed by the owner in the form of an
order to his banker, is a check and not a bill of exchange."

A check imports a payment, not a loan.** When a check
is sent to some other place than where the bank is located
upon which it is drawn, and it is put into a bank for coUec-

10 Uniform Negotiable Instru- order, a named snm of money,

ments Law, || 185-189, post, Cyc. Law Diet,

p. 314. 1* Cyc. Law Diet.

A cheek ie a written order or it Cyc. Law Diet,

request, addressed to a bank or it Industrial Bank ▼. Bowes,

persons carrying on the bniiness 165 Dl. 70, 46 N. E. 10, 56 Am.

of banking, by a party having St. Eep. 228.

money in their hands, on deposit, M Bernard v. Fee's Estate, 129

desiring them to pay on present- Mich. 429, 88 N. W. 1052, citing

ment, to a person named therein, Downey v. Andnu, 43 Mieh. 65, 4

•r bearer, or to sueh person, or N. W. 688.

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tion, it is the duty of the bank to forward it, in proper time,
to a subagent, selected with due care. The bank upon which
it is drawn is not a suitable agent for its collection.^*

g 409. — ^Drafts. — ** Draft" is the common term for a bill
of exchange.** A bank draft is a bill of exchange payable on
demand, drawn by one banker or bank upon another banker
or bank to the order of a person therein named. It is nego-
tiable as usually drawn."

§ 410. — Days of Grace. — ^Negotiable instruments differ from
other simple contracts in the respect of their transferability
as already indicated, in the fact that a consideration will be
presumed unless the contrary is shown, and in the fact that
three days of grace were allowed by the common law, mean-
ing that the instrument could not be sued on until three days
had elapsed after the date named in the instrument for its
maturity.*® Because of rapid transit, and telegraph and tele-
phone communication, days of grace have been abolished in
almost all states. The Uniform Negotiable Instruments Act,
adopted in most states, expressly abolishes days of grace.**
The law of the place of payment must govern as to whether
days of grace are allowed on commercial paper.**

§ 411. Legal HolidayB.— If a bill falls due on a Sunday or
legal holiday, if entitled to grace, it is deemed to be due on
the preceding day; if not entitled to grace, it is deemed to
be due on the succeeding day. The computation of time is
determined by the law of the place of payment, if shown.
In reckoning the twenty-four hours, nonbusiness days must
be excluded.**

Ift Carson, Pirie, Scott is Co. v. Y. 190; id., 13 N. T. 290, 64 Am.

Fincher, 129 Mich. 687, 89 N. W. Dec. 550.

570, 95 Am, St. Bep. 449. Note: Days of grace originated

WCyc. Law Diet. in the distance of travel consum-

17 Bays' Commercial Law, voL ing delay in presentation. — ^Ed.

2, p. 33. 1» Uniform Negotiable Instru-

1» Bays' Commercial Law, voL 2, ments Law, | 85, post, p. 302.

p. 25. W Skelton v. Dustin, 92 111. 49.

It is premature to bring an ac- tl Avery v. Stewart, 2 Conn. 69,
tion on a promissory note on the 7 Am. Dec. 240; City Bank v. Cut-
last day of grace. Wiesinger v. ter, 3 Pick. (Mass.) 414; Salter v.
First Nat. Bank, 106 Mich. 291, 64 Burt, 20 Wend. (N. Y.) 205, 32
N. W. 59; Bowen v. NeweU, 8 N. ' Am, Dec. 630.

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§ 412. Maker of Note. — The maker's contract is to pay the
note according to its tenor, to the payee or his transferee. He
cannot deny the payee's existence or his then capacity to
indorse. His liability is primary .** A blank indorsement on
a note above or below that of the payee renders the indorser
liable prima facie as maker.^ A promissory note signed by
the maker through fear of violence, snatched and carried
away against his will, is not validly delivered.**

§ 413. Drawer of Bill.— The drawer's contract is that if
the bill be not accepted or paid, according to its tenor, to the
payee therein, or his transferee, he, the drawer, will pay it,
provided the necessary steps are taken to charge him. He
cannot deny the payee's existence or his then capacity to
indorse. His liability is secondary. He may by apt words
negative his liability.**

§ 414. Drawee of Bill or Oheok.— A person, firm or cor-
poration upon whom a bill or check is drawn cannot be made
liable thereon unless there is an acceptance. But to the
drawer there may be a liability for failure to accept or failure
to pay, if such failure amounts to a breach of contract.**

§ 415. Acceptor. — The acceptor of a bill of exchange con-
tracts to pay it according to the tenor of his acceptance. He
cannot deny the existence of the drawer or payee, or the
capacity of the first to draw, the second to indorse the in-
strument, or the genuineness of the drawer's signature. His
liability is primary.*^ The acceptor of a bill of exchange who
dishonors it is liable for (1) the amount of the bill with in-
terest (a) from the maturity thereof if the bill be payable
on a day certain, or (b) from the time of presentment for
payment if the bill be payable on demand; (2) as special

ii Bays' Commercial Law, vol. 2, WBays* Commercial Law, vol. 2,

p. 108. p. 108.

S8 National Bank of Bellows MBays' Commercial Law, voL 2,

Falls V. Dorset Marble Co., 61 Vt. p. 109.
106, 17 Atl. 42, 2 L. R. A. 428. «T Bays ' Commercial Law, voL 2,

»4 Palmer v. Poor, 121 Ind. 135, p. 109.
22 N. E. 984, 6 L. B. A. 469.

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damage, the notarial expenses consequent on dishonor, and
(perhaps) the loss on re-exchange incurred by an indorser
who has taken up or paid the biU.^

§ 416. Indorsers. — ^An unqualified indorser warrants the
capacity of the prior parties, the genuineness of the instru-
ment, the genuineness of his title thereto, that the instrument
will not be dishonored by nonacceptance or nonpayment, and
undertakes that if for any of these reasons or otherwise the
instrument is unpaid at maturity, he will pay the amount
thereof to the holder, provided proper steps are taken to
charge him. His liability is secondary.*^

A qualified indorser, or one who negotiates an instrument
by mere delivery, i. e., without indorsement, warrants to his
immediate transferee, and him only, the capacity of the prior
parties, the genuineness of the instrument, the genuineness
of his own title, and that he knows of nothing impairing the
validity of the instrument.*^ The indorser of an accommoda-
tion note is responsible for the payment, when taken in good
faith for value by a bank.*^

**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. "•• In the absence of special agreement,
successive indorsers on an accommodation note of a third
person are liable in the same order as indorsers for value.**

A corporation is liable as indorser on commercial paper
where notices of protest are addressed to it in its corporate
name.** A note presented to the drawer when due, by the
agent of the holder, is sufficient to hold the indorser.** An in-
dorser on a note in the firm's name, subsequently dissolved,

M Haley v. Jonef, 12 Gray SS Moore v. CnBhing, 162 Mass.

(Mass.) 260. 594, 39 N. E. 177, 44 Am. St. Bep.

••Bays 'Commercial Law, v#l. 2, 393; Shaw v. Knox, 98 Mass. 214.

p. 110. •* American Nat. Bank v. Junk

W Bays' Commercial Law, voL 2, Bros. Lumber & Mfg. Co., 94

pp. Ill, 112. Tenn. 624, 30 S. W. 753, 28 L. R.

il Agawam Nat. Bank v. Down- A. 492.

ing, 169 Mass. 297, 47 N. E. 1016. «» Ewen v. Wilbor, 99 XU. App.

M Uniform Negotiable Instru- 132, afT'd 208 XU. 492, 70 N. E. 575.
ments Law, | 68, post, p. 301.

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cannot deny the existence of the firm in order to save himgelf
from liability. A dissolution of partnership has respect to
the future only. The parties remain bound for all antecedent

§ 417. Damages. — ^The drawer or indorser of a dishonored
bill is liable for damages at the following rates: (1) Inland
bill — ^the amount of the bill with interest from (probably) the
time of dishonor. (2) Foreign bill of exchange — ^the amount
of the bill with interest from the time of dishonor, and the
notarial expenses, or, if it be payable abroad, the re-exchange,
interest and expenses. Re-exchange means the loss resulting
from the dishonor of a bill of exchange in a country different
from that in which it was drawn or indorsed.*^


§ 418. Notary's Duties Oonceming Negotiable Instruments.
— ^At the common law, formal protest and notice by a notary
public were only necessary upon foreign bills and notes, and
not on inland. Accordingly at the common law, and in the
absence of statute, when a notary gives notice and makes the
protest, he acts as the holder's agent and not oflScially.** This
has been changed by statute in a large number of states so
that the act is official.'* The distinction is of importance in
determining the liability of a person such as a holder of a
negotiable instrument who employs a notary public to make
presentment, give notice of dishonor and protest such an in-
strument. It is a general rule of agency that a principal is

te Hubbard v. Matthews, 54 N. 195, 44 L. B. A. 133, 70 Am. 8t.

Y. 43, 13 Am. Eep. 562. Bep. 216.

S7 Oyc Law Diet. At the common law, protest was

SS Tevis V. Band all, 6 Oal. 632, 65 not evidence of dishonor, but it

Am. Dec. 547; Williams v. Parks, has been made so by statute.

63 Neb. 747, 89 N. W. 395, 56 L. Bives v. Parmley, 18 Ala. 256.

E. A. 759. WWiUiams v. Parks, 63 Neb.

The giving of notice of dishonor 747, 89 N. W. 395, 56 L. B. A. 759.

is not part of the notary's duties, Where notaries are expressly au-

be being a mere agent of the thorized by statute to give notice,

holder. First Nat. Bank v. Ger- it is an official duty. Williams v.

man Bank, 107 Iowa 543, 78 N. W. Parks, 63 Neb. 747, 89 N. W. 395,

56 L. B. A. 759.

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responsible to third persons who are damaged by torts com-
mitted by the agent within the scope of his authority.*^ Ac-
cordingly, pursuant to this rule, such a principal will be liable
for negligence or mistake of a notary employed by him to
perform such duties.

Apart from the liabilities of third persons who employ no-
taries to perform duties with reference to negotiable instru-
ments is the liability of the notary himself. In order to prop-
erly perform his duties, a notary must have some knowledge
of the law of commercial paper — ^the more the better. Grave
complications are constantly arising from ignorance or neglect
on the part of notaries, resulting in serious loss and damage ■
either to the notary himself, his bondsmen or his principal.*^
A notary who receives paper to protest owes the proper per-
formance of his duty to the principal who requested the act,
and to all others afifected by such acts.** The holder of the
note is entitled to rely on the diligence of the notary.**

Where promissory notes are made protestable securities by
statute, such protest must be attended with all the incidents,
belonging to foreign bills of exchange.**

§ 419. Liabilities of Notaries.— The failure of a notary,
selected as a public oflBcer, to discharge his duty is a breach
of his bond, and renders him and his bondsmen liable for
damages or loss sustained by the party who sought the no-
tary's services,** There is no right of action against a notary

40 Bays 'Commercial Law, vol. 4, 44Tevi8 v. Bandall, Cal. 632,
p. 77. 65 Am. Dec. 547.

41 Post, I 419, liiabiUties of 45 Williams v. Parks, 63 Neb.
Notaries. 747, 89 N. W. 395, 56 L. B. A. 759;

4i Ohio Nat. Bank t. Hopkimi, Wheeler v. State, 9 Heisk. (Tenn.)

8 App. Cas. (D. C.) 146; supported 393, citing Morgan v. Van Ingen,

by Britton v. Niccolls, 104 U. 8. 2 Johns. (N. T.) 204; Nicholls v.

767, 26 L. Ed. 917. Webb, 8 Wheat. (U. S.) 326, 5 L.

Notary receiving paper to pro- £d. 628.
test is agent of owner of paper, A notary is liable for loss occa-
and his paramount duty is to him. sioned for his failure to make pro-
Ohio Nat. Bank v. Hopkins, 8 App. test when it is required. He is
Gas. (D. 0.) 146. liable when he neglects to give

4S Second Nat. Bank v. Smith, proper notice to all parties en-

91 N. J. li. 631, 103 Atl. 862, 1 A. titled to notice of dishonor. His

L. B. 470. position is the same as an agent

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who is ordered to protest a bill on a wrong day, as the no-
tary is not presumed to be a lawyer who is to revise or reverse
the decisions of his employer as to the nature of the bill,^ and
if no loss is sustained by reason of a notary's defective pro-
test, no damages can be claimed against him.^^

§ 420. Liability of Bank Employing Notary Public— A bank
acting as collecting agent for its correspondent, in employing
a notary in his official capacity, is bound to place the paper
in the hands of a competent and careful notary and pay him
for his services the legal fee, charging the same to their cor-
respondent.** A disputed question exists as to the liability
of a bank which employs a notary to give notices and protest,
arising from the conflict of opinion as to whether such notary
is a mere agent, or a public official. The prevailing rule is
that the bank is not liable, in cases of negligence or mistake
on the part of the notary, if it uses diligence in selecting the
official.** A large number of courts hold, however, that the
bank is liable, the notary being regarded as a mere agent.^

in any other line. He can be held
liable for mistakes, negligence and
dne diligence. He is liable for
negligence in presenting or pro-
testing negotiable papers. First
Nat. Bank v. German Bank, 107
Iowa 543, 78 N. W. 195, 44 L. R.
A. 733, 70 Am. St. Rep. 216; Dor-
Chester ft Milton Bank v. New
England Bank, 1 Cush. (65 Mass.)
177; Warren Bank t. Parker, S
Gray (Mass.) 221; Bowling t. Ar-
thur, 34 Miss. 41; AUen v. Suy-
dam, 20 Wend. (N. Y.) 321, 32
Am. Dec. 555; Exchange Nat.
Bank v. Third Nat. Bank of New
York, 112 U. a 276, 28 L. Ed. 722,
5 Sup. Ct. 141.

46 Commercial Bank ▼. VarBUB,
49 N. Y. 269.

47 Franklin v. Smith, 21 Wend.
(N. Y.) 624.

48 Pierce v. Indseth, 106 U. 8.
546, 27 L. Ed. 254, 1 Sup. Ct. 418.

49 First Nat Bank v. German

Bank, 107 Iowa 648, 78 N. W. 196,
44 L. B. A. 133, 70 Am. St. Bep.

Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 32 of 50)