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Joseph F. (Joseph Fitz) Randolph.

A treatise on the law of commercial paper; containing a full statement of existing American and foreign statutes, together with the text of the Commercial codes of Great Britain, France, Germany and Spain (Volume 1) online

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Online LibraryJoseph F. (Joseph Fitz) RandolphA treatise on the law of commercial paper; containing a full statement of existing American and foreign statutes, together with the text of the Commercial codes of Great Britain, France, Germany and Spain (Volume 1) → online text (page 72 of 125)
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(3SG)



Ch. 7) ENGLISH AND AMERICAN STAMP ACTS. § 209

and SI 00, unless tbej were made payable within GO days. With-
out such stamp they were not admissible in evidence. This act was
held in the state of Xew York to apply to its supreme court.* It
was repealed in 1S02, and from that time until the 1st of July, 1S62,
there was no stamp required upon commercial paper by any act of
congress.

On the 1st of July, 18G2, an act was passed requiring all bank
checks, drafts, or orders above |20, inland bills of exchange, drafts,
and notes, excepting bank notes, over |20, and foreign bills of ex-
change or letters of credit, to be stamped. The stamp upon bank
checks, drafts, or orders over |20 was two cents; upon inland bills
of exchange, drafts, and notes over |20, from five cents upward,
varj'ing according to the amount of money to be paid; and on for-
eign bills and letters of credit, in sets of three, on each set three
cents and upward, varying according to the amount of the bill or
letter.^ By section 95 of this act, a penalty was incurred by the
omission of the stamp, and it was further provided that the instru-
ment, if not stamped, ''shall be deemed invalid and of no effect."
This provision was, from time to time, extended, so as not to apply
to commercial paper made before June 1, 1863. By the act of De-
cember 25, 1862, provision was also made for stamping such instru-
ments in open court; and by act of March 3, 1863,® it was provided
that such instruments should not be admitted or used in evidence
until they were properly stamped.

The United States stamp acts provided that no instrument want-
ing the requisite stamp should "be admitted or used in evidence in
any court until a legal stamp, denoting the amount of tax, was af-
fixed thereto, as prescribed by law," and this was enforced by a pen-
alty. And it was further provided that the unstamped instrument
should "be deemed invalid and of no effect," with the provision, liow-

V. O'Sullivan, L. R. G Q. B. 209. A bill drawn in the Isle of Man prior to
1870, and not presented or negotiated in ttie United Kingdom, has been held
to be a foreign bill, and as such not within the stamp act of 17 & IS Vict,
(rriffin V. Weatherby, L. R. 3 Q. B. 753. The amounts above designated need
not take accruing interest into account. Israel v. Beujamiu, 3 Camp. 40.

4 Edeck v. Rauuer, 2 Johns. (N. Y.) 423. This case assumed, rather than
decided, the applicability of the statute to the state court.

5 Stat. U. S. 1S(J2, c. 119 (12 Stat. 432).

6 Stat. U. S. 1803, c. 74, § IG (12 Stat. 724).

(387)



§ 210 FORM — COMPLETION OF CONTRACT. (Ch. 7

ever, for haTing such iustrument stamped bj the United States col-
lector of the district.^ They also provided that such revenue stamp
should be canceled by the initials of the party, with the date, or in
such other way as might be prescribed by the commissioner of in-
ternal revenue.®

All of these provisions were repealed by the act of October 1, 1872,
except as to checks. A revenue stamp of two cents was still re-
quired upon every "bank check, draft, order or voucher for the pay-
ment of money drawn upon any bank, banker or trust company, at
sight or on demand," until May 15, 1883.° This provision did not
include official drafts or vouchers of federal or municipal govern-
ments.^"

The act of congress of June 13, 1898, taking effect July 1, 1898,
provides for revenue stamps as follows: On bank checks, drafts,
and certificates, two cents; on inland bills and promissory notes, two
cents per $100; on foreign bills, four cents per flOO, or, if drawn in
sets, for each part, two cents per



Constructions of United States Statutes.

§ 210. There have been numerous cases before the federal and
state courts in America, construing the stamp acts since 18G2. It
has been held that a United States revenue stamp was in no case
necessary on an instrument executed before October, 1862.^^ But
the stamp act of 1870 was held to apply to a note already made at
that time.^2 The United States stamp acts did not apply to a bill
or note made during the war within the lines of the Confederate
States.^ ^ And this was held to be the case in Texas even as late as
January, 1865.^*

7 Rev. St. U. S. (Ed. 1S7S) §§ 3421, 3422.

8 Rev. St. U. S. §§ 3423, 3424.

Rev. St. U. S. § 341S. In 1SS3 the act which still required stamps on
checks was repealed, to take effect on May 15, 1SS3. Laws U. S. 1SS3, c. 121
(22 Stat. 488).

10 Rev. St. U. S. § .3420.

11 Bayly v. McKnight, 19 La. Ann. 321.

12 Pugh V. McCormick, 14 Wall. 361. But, as to the acts of 1SG4 and 18G5,
see Garland v. Lane, 46 N. H. 245; Whigham v. Pickett, 43 Ala. 140.

13 Susong V. Williams, 1 Heisk. (Tenu.) 625; McElvain v. Mudd, 44 Ala. 48.

14 Van Alstyne v. Sorley, 32 Tex. 518.

(388)



Ch. 7) WHEN STAMP MAY BE AFFIXED. § 211

The indorsement of a note or bill did not, under these statutes,
require a stamp.^^ Nor did the certification of a eheck.^° And a
duebill reading, "Due A. B. on corn, five hundred and twenty-five
dollars (|o25)," has been held not to require a stamp. ^' This is true,
too, of a mere admission of a balance due on an account, which, as
has been already seen, is not equivalent to a promissory note.^*
Again, where a note was altered by changing its date, it was held
not to need a new stamp on that account, as a new note.^^ And
where a contemporaneous note and agreement are made to operate
as one instrument, the stamp on the note alone has been held suffi-
cient.^" A revenue stamp was necessary to a small draft by the
agent or treasurer of a corporation for wages, but such draft might
be stamped as a check, and not as a note.^^

It w^as not, however, necessary upon a bond required by law in
insolvency cases, this not being a voluntary instrument.^- Where a
note, originally stamped according to law, had been barred by the
discharge of the maker as an insolvent, his subsequent promise, by
an unstamped letter, to pay the note, was held to be sufficient; this
not being a new contract, but merely evidence of the original prom-
ise.^ ^ Under the scaling acts in the Southern States, a note made
for a large amount in Confederate currency, but valued at much less,
and stamped as a note for a smaller amount, was admissible in evi-
dence, the jury being left to estimate the value of the note.-*

When Stamp may be Affixed — Presum.ptions.

§ 211. Where an instrument appears properly stamped, it is a
presumption of law that the stamp was affixed at the time of its
delivery.'^ ^ So, it is presumed, in the absence of proof to the con-

15 Pugh V. McCormick, 14 Wall. 3G1.

18 Merchants' Bank v. State Bank, 10 Wall. 604.

IT Jacqu'n v. Warren, 40 111. 459.

18 Jones V. Jones, 38 Oal. 584.

19 Prather v. Zulauf, 38 Ind. 155.

20 Bowker v. Goodwin, 7 Nev. 135.

21 U. S. V. Isham, 17 Wall. 496.

22 McGovern v. Hoesback, 53 Pa. St. 177.

23 Cook V. Shearman, 103 Mass. 21.

24 Kile V. Johnson, 4S Ga. 189.

2B Union Agricultural & Stock Ass'n v. NelU, 31 Iowa, 95; Iowa & M. R.

(3S9)



§211 FORM COMPLETION OF CONTRACT. (.Ch. 7

trary, in an action upon a lost bill of exchange, that it was properly
stamped, especially- if the bill be detained in the defendant's posses-
sion after notice given to produce it.-*

Where, however, a note was stamped by the holder after its de-
livery, it was still valid, in the absence of fraudulent intent.-^ And
if left unstamped through the maker's ignorance, and afterwards
stamped by the payee, the maker could not object to such stamp-
ing,-^ even though he had been requested to cancel such stamp and
had refused.^® Indeed, a bill or note may be stamped after issue
joined in a suit upon it, and this will constitute no defense against
a bona fide holder for value.^*^ And, if a note w-as stamped after its
delivery without authority of the maker, it was still valid at suit
of a bona fide holder.^ ^ And this is so in the hands of a bona fide
holder for value, even where the note had been delivered without
a stamp, under an agreement that it should not be used until stamped
by the maker, and had, notwithstanding this agreement, been fraud-
ulently stamped and negotiated by the payee.^^ Where, however, it
is not in the hands of a bona fide holder for value, notice to the
holder of the original want of stamp, and of the absence of author-
ity from the maker to affix the stamp, will constitute a good de-
fense.^ ^ Whether a stamp has been used in fraud of the United
States revenue a second time is a question of fact for the jury.^*

As has been already remarked, a note left unstamped might be
stamped in open court at the time of trial, if the original omission
was without fraud.^^ This is true, also, w'here the omission was

Co. V. Perkins, 28 Iowa, 2S1. Or at the time of its ti-ansfer, if tliat is what
the law requires, Bradlaiigh v. De Rin, L. R. 3 C. P. 286; and by the pi-oper
person, Iowa & M. R. Co. v. Perliins, supra.

2 6 Marine Inv. Co. v. Haviside, L. R. 5 H. L. 625.

2 7 Willey V. Robinson, 13 Allen (Mass.) 128.

2 8 Green v. Lowry, 38 Ga. 548.

29 Day V. Baker, 3G Mo. 125.

30 Blackwell v. Denie, 23 Iowa, 63; Robinson v. Lair, 31 Iowa, 9; Sperry
V. Horr, 32 Iowa, 184. And the want of a stamp will not affect the bona
fides of the holder. Burson v. Huntington, 21 Mich. 415.

31 Blackwell v. Denie, 23 Iowa, 63; Latham v. Smith, 45 111. 25.

3 2 Anderson v. Starkweather, 28 Iowa, 409.

33 PMrst Nat. Bank of Centreville v. Dougliorty, 29 Iowa, 260.
8 4 Rockwell Y. Hunt, 40 Conn. 328.

36 Morris v. Mc^Iorris, 44 Miss. 441; Waterbury v. McMillan, 46 Miss. 635.
(390)



Ch. 7) cancellatio:n of stamp. § 212

designed, but without fraud, the note having been given merely as a
memorandum.^" The act of June 30, 1864, providing for stamping
in court, was held to be applicable, and the act of March 3, ISGo,
requiring a stamp to be affixed by the collector, was held to be in-
applicable, to a note made in 18G3." It has been held, however, that
a note made after June 30, 18G4, could not be stamped in open
court.^^ ^Yhen an instrument has been thus stamped, it is thereby
rendered valid from its date.^^ And such stamping under the stat-
ute by an attorney in court has been held sufficient without any
cancellation of the stamp.*° So, if a stamp has been affixed by the
United States collector, it renders the instrument valid, as if it had
been originally duly stamped." And such stamping by the collector
is not an alteration, and cures the defect arising from a want of
stamp, although the omission may have been originally with design
to defraud the government.*^

Cancellation — Fraudulent Omission.

§ 212. The cancellation of a stamp has been held sufficient where
it was merely so defaced as to be incapable of further use.*^ And
a cancellation by the initials of one only of several joint makers has
been held sufficient.** Whether a cancellation of a stamp by the
maker's initials was authorized by him is a question for the jury.*^
It has also been held to be a sufficient cancellation if the payee's

3 6 Redlich V. Doll. 54 N. Y. 234.
37 Garland v. Lane, 46 X. H. 245.

3 8 Whigliam v. Pickett, 43 Ala. 140. But in Tobey v. Cbipman, 13 Allen
(Mass.) 128, it was held to apply to a note dated August 1, 1864, so as to

cure the defect of an omission of stamp made without fraud. See, too,
Stat. U. S. 1866, c. 184 (14 Stat. OS).

39 Dorris v. Grace, 24 Ark. 326.

*o Blunt V. Bates, 40 Ala. 470. As to whether the attorney of the payee
can be obliged to testify whether the note was stamped before delivery, see
Wheatley v. Williams, 1 Mees. & W. 533.

41 Aldrich v. Hagan, 50 N. H. 60; Gibson v. Hibbard, 13 Mich. 214; Long
V. Spencer, 78 Pa. St. 303.

42 Crews v. Bank, 31 Grat. (Va.) 348.

43 Taylor v. Duncan, 33 Tex. 440.

44 Spear v, Alexander, 42 Ala. 572.

4 5 Kees V. Jackson, 64 Pa. St. 486.

(391)



§ 213 FORM — COMPLETION OF CONTRACT. (Cll. 7

initials are used instead of the maker's.*^ And if stamped in court,
and the stamp canceled without any initials, this has been held suffi-
cient.*'^ Indeed, if the cancellation of a stamp has been omitted
altogether, this omission furnishes no defense on the maker's part,
as such omission could only be the maker's own wrong.*^

Fraud is never to be presumed in case of the omission of a stamp,
tut must be clearly proved.*^ Indeed, it has been held that, in case
of such omission, there is a presumption of good faith on the maker's
part,^" although the omission has been said to be prima facie inten-
tional.^^ It is only fraudulent omissions that render an instrument
void or inadmissible in evidence.

Clause Avoiding for Want of Stamp Unconstitutional.

§ 213. The United States revenue act has been held to be uncon-
stitutional so far as it rendered a bill of exchange void for want of
a stamp,^^ and so far as it rendered an unstamped deed void.^^

But, as has been said, the omission of a stamp did not render the
instrument void under the act of congress, unless it was fraudulent
in its purpose.^* This is true both as to the clause avoiding the in-

*6 Schultz V. Herndon, 32 Tex. 390.

47 Foster v. Holley's Adm'rs, 49 Ala. 593.

4 8 Mogelin v. Westhoff, 33 Tex. 7SS; Desmond v. Norris, 10 Allen (Mass.)
250. Nor does it affect its admissibility in evidence, Jacobs v. Cunningham.
32 Tex. 774; Schultz v. Herndon, Id. 390.

40 Moore v. Quirk, 105 Mass. 49; Craig v. Dimock, 47 111. 308; Morris v.
McMorris, 44 Miss. 441; Waterbury v. McMillan, 46 Miss. G35.

50 Baker v. Baker, G Lans. (N. Y.) 509; Grant v. Insurance Co., 29 Wis.
125; New Haven & N. Co. v. Quintard, 6 Abb. Frac. (N. S.) 128; Ricord v.
Jones. 33 Iowa, 26; Weltner v. Riggs, 3 W. Va. 445.

51 Howe V. Carpenter, 53 Barb. (N. Y.) 382.

52 Hunter v. Cobb, 1 Bush (Ky.) 239; Craig v. Dimock, 47 111. 308; Burson
V. Huntington, 21 Mich. 415.

53 Moore v. Moore, 47 N. Y. 467.

64 Dudley v. Wells, 55 Me. 145; Cabbott v. Radford, 17 Minn. 320 (Gil.
296); Whighara v. Pickett, 43 Ala. 140; State v. Hill, 30 Wis. 410; Atkins
V. Plynipton, 44 Vt. 21. Even, it seems, though it was intentional. Patter-
son V. Gile, 1 Colo. 200. Indeed, an omission without fraud affects neither
the validity of an instrument, nor its admissibility in evidence. Boweu v.
Byrne, 55 111. 467; Craig v. Dimock, 47 111. 308; Bunker v. Green, 48 111. 243;
Hanford v. Obrccht, 49 111. 146; Maynard v. Johnson, 2 Nev. 16.
(392)



Ch. 7 ) ADMISSIBILITY IN EVIDENCE. § 214

strument and as to the penal clause."' It is plain, therefore, that the
omission of a stamp by the maker's agent, and against his direc-
tion, inadvertently, would have no effect to avoid the instrument.^"
It has been held that an omission of a stamp invalidates the instru-
ment, even without fraudulent intent." This is not supported, how-
ever, by the weight of authority.

On an indictment for forgery, the fact that the instrument was
not stamped has been held to constitute no defense in England."*
The same principle appears to have been held in the United States,
an indictment for such forgery being held suificient without any
allegation that the instrument was stamped. This conclusion seems
to have been derived from the rule that the unstamped instrument
would be void only by reason of a fraudulent omission of the stamp."*
The contrary was held, however, in Texas, on the ground that the
crime of forgery could not be complete until the instrument was
stamped.*"

Admissibility in Evidence — Pleading.

§ 214. Where there has been no fraud in the omission of the
stamp, the instrument has been held to be admissible in evidence
without it.°^ Likewise, on proof of omission by mistake,®^ or even

55 Green v. Holway, 101 Mass. 243; Baker v. Baker, 6 Laus. (X. Y.) 509;
Frink v. Thompson, 4 Lans. (N. 1'.) 489; Works v. Hersbey, 35 Iowa, 340;
Ricord v. Jones, 33 Iowa. 26; Weltner v. Riggs, 3 W. Va. 445. This is true,
also, as to other contracts. Vorebeck v. Roe, 50 Barb. (X. Y.) 302; Morgan
V. Graham, 35 Iowa, 213; Mitchell v. Home Ins. Co., 32 Iowa, 421.

5 6 Yaughan v. O'Brien, 57 Barb. (N. Y.) 491.

57 Hugus V. Strickler, 19 Iowa, 414. This was not the case of a bill or
note. See, too, Wayman v. Torreyson, 4 Xev. 124, where the administrator
of the maker was not allowed, after the maker's death, to affix a stamp.

58 Hawkeswood's Case, 2 East, P. C. 955; Teague's Case, Id. 979.

69 State V. Hill, 30 Wis. 416. This case overrules John v. State, 23 Wis.
504.

60 Horton v. State, 32 Tex. 79.

61 Oxford Iron Co, v. Spradley, 51 Ala. 171; Ferryman v. Greenville, Id.
507; Emery v. Hobson, 63 Me. 33; Black v. Woodrow, 39 Md. 194; Boweu
v. Byrne, 55 111. 467; Craig v. Dimock, 47 111. 30S; Bunker v. Green, 48 111.
243.

6 2 Beebe v. Hutton, 47 Barb. (X. Y.) 187.

(393)



§ 214 FORM COMPLETION OF CONTRACT. (Ch. 7

without any such proof, unless fraud was aflBrmatively shown.^^ It
has been held, on the other hand, that an unstamped note could not
be admitted in evidence, even in a state 'court, until it was properly
stamped; ^"^ and that the contents of an unstamped agreement, which
has been lost, could not be proved at all,*^^

But it seems unnecessary to set out the stamp or the fact that the
instrument was stamped in the pleadings, and the failure to make
this appear in a declaration is not ground for demurrer,®^ even
though the declaration purport to set forth a copy of the note and
make no mention of a stamp upon if ^ So, the mere omission of
a stamp cannot be pleaded in defense, unless the plea also show that
the instrument cannot be made good by stamping it before trial.® ^
The stamp is no part of a bill or note, and need not appear in the
case after verdict rendered.®^ And the omission of a stamp, in like
manner, on appeal papers is immaterial, except in case of fraud.'^"

The want of a stamp has been held to render the unstamped in-
strument inadmissible in evidence, even in a state court,^^ until it
has been properly stamped by the collector.'^^ On the other hand, the
act of congress has been generally held, so far as relates to evi-
dence, to apply only to the United States courts.^ ^ And, so far as it

6 3 Timp V. Dockham, 29 Wis. 440.
64 Plessinger v. Depuy, 25 Ind. 419.
6 5 Turner v. State, 48 Ala. 549.
6c Cabbott v. Radford, 17 Minn. 320 (Gil. 29G).

67 Trull V. Moulton, 12 Allen (Mass.) 396; Campbell v. Wilcox, 10 Wall.
421.

6 8 Byles, Bills, 119; Bradley v. Bardsley, 15 Law J. Exch. 115, 8 Dowle &
L. 47G, and 14 Mees. & W. 873. See, however, Lazarus v. Cowie, 3 Q. B.
465; Tattersall v. Fearnley, 17 C. B. 368.

C9 Owsley v. Greenwood, IS Minn. 429 (Gil. 386).

7 Harper v. Clark, 17 Ohio St. 190.

71 Chartiers & R. Turnpike Co. v. McNamara, 72 Ta. St. 281; Tl-ipp v.
Bishop, 56 Pa. St. 424; Jones' Appeal, 62 Pa. St. 324; City of Muscatine v.
Sterneman, 30 Iowa, 526; Mussellman v. Mauk, 18 Iowa, 239; Botkius v.
Spurgeon, 20 Iowa, 598; Doud v. Wright, 22 Iowa, 337; Cedar Rapids &
St. P. R. Co. V. Stewart, 25 Iowa, 117; McLearn v. Skelton, 18 La. Ann. 514.

7 2 Corrie v. Estate of Billiu, 23 La Ann. 250.

73 Carpenter v. Snelling, 97 Mass. 452; Lynch v. Morse, Id. 458; People v.
Gates, 43 X. Y. 40; Griffin v. Ranney, 35 Conn. 239; Green v. Holway, 101
(394)



Ch. 7) ACTION ON ORIGINAL CONSIDERATION. § 215

required a stamp upon the process of a state court, it was held at
an early day to be unconstitutional.'*

Action on Original Consideration.

§ 215. Where the omission of a stamp is set up in defense by the
maker at suit of the payee of a note, recovery may be had on the
original consideration.'^ And, in an action on the original consid-
eration, an unstamped note given for it is admissible in evidence for
the purpose of showing the date of the transaction at least. '^^ It
is also to be observed that the want of a stamp upon an instrument
at the time of its delivery furnishes no evidence to rebut the pre-
sumption that the transfer to the holder was for valuable consid-
eration.'^'

It has been held in England that an instrument may be admitted
in evidence without a stamp for collateral purposes, such as to neg-
ative an allegation of payment;"'^ or to refresh the memory of a
witness; '^^ or to corroborate a witness;^" or to prove fraud ^^ or
usury; ^2 Qp ^q prove an agreement illegal; ^^ or to show that a
former agreement has been rescinded.®* But it is not admissible in
order to show the payee's assent to the cancellation of an original

Mass. 243; Sporrer v. Eifler, 1 Heisk. (Tenn.) 633; Bowen v. Byrne, 55 111.
4G7; Rockwell v. Hunt, 40 Conn. 32S; Sammous v. Halloway, 21 Mich. 162;
Burson v. Huntington, Id. 415; Weltuer v. Riggs, 3 W. Va. 445; Forcheimer
V. Holly, 14 Fla. 239. So, too, in other contracts. United States Exp. Co.
V. Haines, 48 111. 248; Clemens v. Conrad, 19 Mich. 170; Davis v. Richard-
son, 45 Miss. 499.

74 Warren v. Paul, 22 Ind. 276; Fifield v. Close, 15 Mich. 505.

7 5 Wilson V. Carey, 40 Vt. 179; Humphreys v. Wilson, 43 Miss. 328.

T 6 Israel v. Redding, 40 111. 362.

7 7 Long V. Spencer, 78 Pa. St. 303.

7 8 Smart v. Nokes, Man. & G. 911.

7 9 Maugham v. Hubbard, 8 Barn. & C. 14.

80 Dover v. Maestaer, 5 Esp. 92.

81 Byles, Bills, 117; Gregory v. Fraser, 3 Camp. 454. See, too, Holmes v.
Sixsmith, 7 Exch. 802; Watson v. Poulson, 15 Jur. 1111; Keable v, Payne, 8
Adol. & E. 555; Reg. v. Gompertz, 9 Q. B. 824.

82 Nash V. Duncomb, 1 Moody & R. 104.

83 Coppock V. Bower, 4 Mees. & W. 361.

84 Reed v. Deere, 7 Barn. & C. 2G1. And see Swears v. Wells, 1 Esp. 317.

(305)



§ 215 FORM COMPLETION OF CONTRACT. (Ch. 7

acceptance;^'' or to take a promise out of the statute of limita-
tions; ^® or to prove an admission of a party to the suit.®^

The American decisions above referred to have now no applica-
tion to commercial instruments drawn in, or governed by, the laws
of the United States. For a fuller statement of the English cases
interpreting the English stamp acts the reader is referred to the learn-
ed and exhaustive chapter of Mr. Justice Byles on this subject,^*

8B Sweeting v. Halse, 9 Bam. & C. 365, 4 Man. & R. 287.

86 Jones V. Ryder, 4 Mees. & W. 32. And see Holmes v. Mackrell, 3 C. B.
(N. S.) 789.

87 Byles, Bills, 117. Or as a payment. Wilson v. Vysar, 4 Taunt. 288;
Jardine v. Payne, 1 Barn. & Adol, 663. And, where payment was made by
an unstamped bill, the indorser was held not to be entitled to formal notice
of its subsequent dishonor. Cundy v. Marriott, Id. 696.

88 Byles, Bills, 104 et seq.

(396)



Ch. 7) DELIVERY NECESSARY. § 216



n. Delivery.

216. Necessity for Delivery.

217. Pleading— Evidence— Presumption.

218. Delivery— By Mail— In Sealed Envelope.

219. Constructive.

220. Intention Necessary— Mistake— Fraud.

221. After Death or Dissolution of Firm.

222. To Agent.

224. Instrument Takes Effect from.

225. On Sunday.

227. On Condition— In Escrow.

230. Want of— As a Defense.

231. Parol Evidence.



Delivery Necessary.

§ 216. Commercial paper, like other written contracts, takes ef-
fect and is completed only by delivery.^ ^ This is true, not only of
the principal contract on the face of the note or bill, but also of
the indorsement.*^" Thus, a note may be indorsed by the payee with-
out effecting a transfer so long as it remains in his hands.^^ And

89 1 Daniel, Neg. Inst. 73; 1 Pars. Notes & B. 48; Brind v. Hampsliire, 1
Mees. & W. 3G5; Marstou v. Allen, 8 Mees. & W. 494; Lansing v. Gaine, 2
.Tohns. (N. Y.) 300; Marvin v. McCullum, 20 Jolms. (N. Y.) 288; Powell v.
Waters, 8 Cow. (N. Y.) 687; Howe v. Ould, 28 Grat. (Va.) 1; Carter v. Mc-
Clintock, 29 Mo. 4G4; Lawrence v. Bassett, 5 Allen (Mass.) 141; Curtis v.
Gorman, 19 111. 141; Thomas v. Watkins, 16 Wis. 549; Chamberlain v.
Hopps, 8 Vt. 94; Prather v. Zulauf, 38 Ind. 155; Jones v. Deyer, 16 Ala. 221.
If delivered by one maker, the authority of his co-maker is presumed.
Beman v. Wessels, 53 Mich. 549, 19 N. W. 179. But, if drawn and delivered
by an agent while his principal Avas dying, his authority must appear. In
re James, 146 N. Y. 78, 40 N. E. 876.

90 Lysaght v. Bryant, 9 C. B. 46; Adams v. Jones, 12 Adol. & E. 455; Rex
V. Lambton, 5 Price, 428; Clark v. Boyd, 2 Ohio, 56; Brind v. Hampshire,
supra; Ex parte Cote, 9 Ch. App. 27; Dann v. Norris, 24 Conn. 333; Rich-
ards V. Darst, 51 111. 140; Mott v. Wright, 4 Biss. 53, Fed. Cas. No. 9,883;
May V. Cassiday, 7 Ark. 376.

01 Mendenhall v. Baylies, 47 Ind. 575; Wulschner v. Sells, 87 Ind. 71.
And if a note is made payable to A. for a debt due to her father, B., and
at his request, and is taken by her, without his knowledge, from his private



Online LibraryJoseph F. (Joseph Fitz) RandolphA treatise on the law of commercial paper; containing a full statement of existing American and foreign statutes, together with the text of the Commercial codes of Great Britain, France, Germany and Spain (Volume 1) → online text (page 72 of 125)