were declared absolutely void by the laws of the State in which they were made.1

§ 3. DRAWER OR INDORSER.

Next, of the conflict of laws touching the liability of drawer or indorser.

and demand.

In regard to presentment and demand, the law of the place of performance governs the question of time; 2 and that because the Presentment drawer and the indorsers are sureties, in a broad sense, for the acceptor and the maker. But whether presentment and demand are necessary, in the absence of waiver, and whether the steps taken, if taken at the right time, were properly taken, the law of the place of indorsement governs.

notice.

4

In regard to protest and notice, the place of the drawing or the indorsement furnishes the governing law upon a question Protest and of the necessity of these steps; while the law of the place of payment probably governs upon a question of the mode of taking the steps and of the time of making presentment. Thus, in regard to the first of these questions, suppose a bill of exchange payable after date, drawn in Pennsyl vania to the order of a citizen of New York, payable in the latter State, and indorsed by the payee, were dishonored on presentment for acceptance. In such a case it would not be necessary to notify the drawer, and it would be useless to do so, because of the local law of Pennsylvania; while the contrary would be true in regard to the payee-indorser, residing in New York, because of the general law merchant. In regard to the second

1 Akers v. Demond, 103 Mass. 318.

2 Aymar v. Sheldon, 12 Wend. 439; Chatham Bank v. Allison, 15 Iowa, 357; Rouquette v. Overmann, L. R. 10 Q. B. 525. But see Hatcher v. McMorine, 4 Dev. 122, 124.

3 Aymar v. Sheldon, supra; Allen v. Merchants' Bank, 22 Wend. 215; Thorp v. Craig, 10 Iowa, 461; Short v. Trabue, 4 Met. (Ky.) 299; Hunt v. Standart, 15 Ind. 33 (overruling Shanklin v. Cooper, 8 Blackf. 41); Huse v. Hamblin, 29 Iowa, 501; Douglas v. Bank, 97 Tenn. 133. But see Dunn v. Adams, 1 Ala. 527, as to protest and quære.

See Douglas v. Bank, 97 Tenn. 133, demand and notice.

5 Read v. Adams, 6 Serg. & R. 356. See also Horne v. Rouquette, 3 Q. B Div. 514.

question it will be enough to say, for instance, that if a deputy of a notary public were authorized to act by the law of the place of payment, he might so act, though it should appear that by the law of the place of indorsement the notary must act in person; and if by the law of the place of payment four days of grace were allowed, presentment must be made on the fourth day, to be followed by the other steps accordingly, whatever the law of the place of indorsement, for the liability of the drawer and indorsers depends upon that of the acceptor or maker. But the time when notice of dishonor should be given or sent is governed, it seems, by the law of the place of indorsement.1

Where indorsement is made in a State or a country in which the law merchant has been changed or does not prevail, the question of the liability of the indorser, otherwise than Special rules as above considered, will be governed by the law of of law. such State or country. Thus, in some States indorsers are not liable merely upon the taking of the steps required by the law merchant; the holder must first bring suit against the maker or acceptor, and endeavor to obtain payment from him, unless such suit would be useless. The law of the place of indorsement would govern in such cases."

In regard to the amount recoverable from a drawer or an indorser, the fact that they are looked upon as sureties of the acceptor or maker indicates the extent of their Amount reliability and the governing law. The surety is coverable. liable for the sum which the principal debtor fails to pay, no more and no less; and hence, in principle and by the weight of authority, the governing law is the law of the place governing the contract of the acceptor or maker. The statement and

1 Horne v. Rouquette, 3 Q. B. Div. 514, casting doubt upon Rothschild v. Currie, 1 Q. B. 43, 49, a case much cited.

2 Williams v. Wade, 1 Met. 82; Short v. Trabue, 4 Met. (Ky.) 299; Trabue v. Short, 18 La. An. 257; Trabue v. Short, 5 Cold. 293; Dundas v. Bowler, 3 McLean, 397, 400. But see Coffman v. Bank of Kentucky, 41

Miss. 212.

Jewell v. Wright, 30 N. Y. 259; Dickinson v. Edwards, 77 N. Y. 573. See Rouquette r. Overmann, L. R. 10 Q. B. 525; Wayne Bank v. Low, 81

rulings sometimes made that the law of the place of indorsement governs in such a case is believed to be incorrect.1 Payment by the principal debtor, that is, of the sum due by the law governing his own contract, will always discharge the surety.

§ 4. PROCEDURE AND REMEDY.

The mode of procedure, whether for instance by attachment or not, the jurisdiction of the court, whether the Statute of Limitations or the Statute of Frauds applies, these

Lex fori governs.

and other questions of the mode of procedure and of the remedy, are governed by the law of the State in which the suit is brought, the lex fori; unless statute otherwise provides. Intention plays no part here.

N. Y. 566, 570; Hildreth v. Shepard, 65 Barb. 269. Several cases contra in New York have been overruled.

1 There are several such decisions, mostly however by intermediate courts. They are founded more or less upon Gibbs v. Fremont, 9 Ex. 25, Allen v. Kemble, 6 Moore, P. C. 314, 321, and Cooper v. Waldegrave, 2 Beav. 282, 285. Concerning the last named case see the remarks of Cockburn, C. J., in Rouquette v. Overmann, supra. And further see Story, Conflict of Laws, pp. 442, 443, note, 8th ed.; Bills of Exchange Act, § 72.

2 There has always been more or less doubt whether the defence of the Statute of Limitations is a matter of procedure (or remedy) or of substantive right; and in many States the bar of the foreign law is a bar in the State of the suit, either by statute or by doctrine as to the nature of the bar. See Collins v. Manville, 170 Ill. 615. Contra, Orear v. First National Bank, 97 Ga. 587.

NEGOTIABLE INSTRUMENTS LAW.

[THE STATUTE HERE GIVEN IS THAT OF NEW YORK. THE POINTS WHERE THERE ARE OR ARE LIKELY TO BE DIFFERENCES OF LEGISLATION ARE INDICATED. THE STATUTE HAS BEEN COLLATED WITH THAT OF COLORado, and the VARIATIONS NOTICED, BY WAY OF Suggesting Differ- General Laws of New York, 1897, chap. 612; Laws of Colorado, 1897, chap. 64.]

ENCES TO BE LOOKED FOR.

ARTICLE I.

GENERAL PROVISIONS.

§ 1. THIS Act shall be known as the Negotiable Instruments Law.

§ 2. In this Act, unless the context otherwise requires: Acceptance' means an acceptance completed by delivery or notification.

'Action' includes counter-claim and set-off.

'Bank' includes any person or association of persons carrying 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 bill of exchange, and 'note' means negotiable promissory note.

'Delivery' means transfer of possession, actual or constructive, from one person to another.1

'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 delivery. ''Instrument' means negotiable instrument.

'Issue' means the first delivery of the instrument, complete in form, to a person who takes it as a holder.

not.

Person' includes a body of persons, whether incorporated or

'Value' means valuable consideration.

'Written' includes printed, and writing' includes print.

1 See ante, p. 13.

? Why not cheque also!

§ 3. 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 persons are secondarily' liable.

§ 4. In determining what is a 'reasonable time' or an 'unreasonable time' regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case.

§ 5. 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.

§ 6. The provisions of this Act do not apply to negotiable instruments made and delivered prior to the passage hereof.1 § 7. In any case not provided for in this Act the rules of the law merchant shall govern.

ARTICLE II.

FORM AND INTERPRETATION.

§ 8. An instrument to be negotiable must conform to the following requirements:

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 determinable 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.

§ 9. The sum payable is a sum certain within the meaning of this Act, although it is to be paid:

1. With interest; or

2. By stated instalments; or

1 Colorado Statute, Prior to the taking effect of this Act.' § 195.