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

(a) Illustration: Instrument payable to "A. B., or bearer." In such case it is negotiable by delivery, and the indorsement of A. B. is not necessary to pass the title therein. See section 60.

(b) It has been held that a note made payable to the order of the estate of a deceased person is a promissory note with a fictitious payee, and where it has been negotiated by the maker is deemed as against him to be a note payable to bearer. Lewisohn v. The Kent & Stanley Co., 87 Hun, 257. But the correctness of this view seems very questionable. The ground of the rule is that, as the fictitious payee cannot indorse the instrument, the drawer or maker must have intended that it should be payable to bearer. But no such intention can be properly ascribed where the instrument is drawn payable to the order of an estate; for the obvious intention is that it shall be paid upon the order of the decedent's legal representatives, and that they shall indorse the paper. Checks are frequently drawn in this way, and it appears to be the understanding of the business community that they require the indorsement of the executor or administrator. It is essential that the fictitious character of the payee should be known to the person making the instrument so payable. As said by the Court of Appeals of New York, in Shipman v. Bank of the State of New York, 126 N. Y. 318, “The maker's intention is the controlling consideration which determines the character of such paper. It cannot be treated as payable to bearer unless the maker knows the payee to be fictitious, and actually intends to make the paper payable to a fictitious person." Hence, if the maker or drawer supposes the payee to be an actually existing person (as, for instance, where he is induced by fraud to draw the instrument to the order of a fictitious person whom he supposes to exist), the instrument will not be payable to bearer, and no person can acquire the title thereto by delivery. And where the instrument is a check, or a bill or note payable at a bank, the bank cannot charge the same to the account of its customer, since the instrument is not in such case payable to bearer, and the indorsement is a forgery. Shipman v. Bank of the State of New York, supra; Armstrong v. Bank, 46 Ohio St. 412; Chisholm v. First Nat. Bank of New York (Tenn.), 39 S. W. Rep. 340; Bank of England v. Vagliano [1891], App. Cas. 107. But see Clutton v. Attenborough [1895], 2 Q. B. 707.

(c) For example, a check payable to

"cash" or to

sundries."

See Willets v. Phoenix Bank, 2 Duer, 121; Mechanics' Bank v. Stratton, 2 Keyes, 365.

§ 29. Terms when sufficient. The instrument need not follow the language of this act, but any terms are sufficient which clearly indicate an intention to conform to the requirements hereof (a).

(a) It may be written in a foreign language as well as in English. 'Debebian v. Gala, 64 Md. 262, 265. The writing may be in pencil as well as in ink. Brown v. Butchers' Bank, 6 Hill, 443. As to the construction of ambiguous instruments, see section 36.

§ 30. Date, presumption as to.-Where the instrument or an acceptance or any indorsement thereon is dated, such date is deemed prima facie to be the true date of the making, drawing, acceptance or indorsement, as the case may be (a).

(a) But evidence is admissible, as between the immediate parties, to show a mistake in the date. Cowing v. Altman, 71 N. Y. 441. If the date is an impossible one, the law will adopt the nearest day. Thus, if the date is written September 31st, the true date will be deemed to be September 30th. Wagner v. Kenner, 2 Rob. (La.) 120.

§ 31. Ante-dated and post-dated.-The instrument is not invalid for the reason only that it is ante-dated or postdated, provided this is not done for an illegal or fraudulent purpose. The person to whom an instrument so dated is delivered acquires the title thereto as of the date of delivery (a).

(a) A post-dated bill or check may be negotiated before the day of its date. Brewster v. McCardle, 8 Wend. 478; Pasmore v. North, 13 East, 517. In the case last cited the payee who had negotiated a post-dated bill died the day before the day of date; but it was held that the indorsee had derived title through such payee, and could recover of the drawer. If for the purpose of evading the law, a false date is inserted in the instrument, it will be void as to all persons having notice. Serle v. Norton, 9 M. & W. 309.

§ 32. 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 payable at a fixed period after sight is undated, any holder may insert therein the true date of issue or acceptance, and the instrument shall be payable accordingly (a). 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 (b). (a) See next section.

(b) Redlich v. Doll, 54 N. Y. 238; Page v. Monell, 3 Abb. Ct. App. Dec. 433; Mitchell v. Culver, 7 Cow. 333.

$33. 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 (a). 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 (b). 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 (c).

(a) The leading authority upon this point is Russell v. Langstaffe, 2 Doug. 514. In that case a person had indorsed his name on five copperplate checks, blank as to amounts, dates and times of payment, and the holder, Galley, filled them up as his own notes

*The word "negotiated" substituted for "negotiable" by Laws N. Y. 1898, c. 336.

with different dates, amounts and times of payment. The indorser was held liable to the plaintiff, who had discounted them. Lord Mansfield said: "The indorsement on a blank note is a letter of credit for an indefinite sum. The defendant said: 'Trust Galley for any amount, and I will be his security.' It does not lie in his mouth to say the indorsement was not regular." See also Ovrick v. Colston, 7 Gratt. 189; Frank v. Lilienfeld, 33 Gratt. 377; Boyd v. McCann, 10 Md. 118; Elliot v. Chestnut, 30 Md. 562; Androscoggin Bank v. Kimball, 10 Cush. 373. If the place for the name of the payee is left blank the holder may fill it up with his own name as payee. Boyd v. McCann, 10 Md. 118. But it will be noticed that the authority is only to complete the instrument, for while there is an authority to fill up blanks in order to make the instrument complete as such, there is no authority to insert a special agreement not essential to the completeness of the instrument. Weyerhauser v. Dunn, 100 N. Y. 150.

(b) It is to be observed that this rule applies only where the incomplete instrument has been delivered. See next section.

(c) If the instrument be used, or the blanks filled up contrary to the agreement or intention of the original parties, the maker is held to any bona fide holder for value, upon the principle that where one of two innocent parties must suffer by the fraud or wrong of a third person the one who put it in the power of such third person to commit the fraud or wrong must bear the loss. The liability of the maker in such case has also, sometimes, been placed upon the principle of estoppel; he, having put his paper in circulation, and thus invited the public to receive it of any one having apparent title, is estopped to urge the actual defect of title against a bona fide holder. Redlich v. Doll, 54 N. Y. 234, 238. Where one makes and delivers a promissory note, perfect in form, except that a blank is left after the word "at" for the place of payment, there is an implied authority for any bona fide holder to fill the blank, and the insertion of a place of payment, and negotiation of the note, contrary to the agreement of the original parties, does not avoid it in the hands of a bona fide holder for value. (Id.) So, one who intrusts another with his blank acceptance is liable to a holder for value, though filled up for a sum exceeding that limited by the acceptor. Van Duzer v. Howe, 21 N. Y. 531. But where the amount is left blank in the body of the note, and a sum is indicated in figures in the margin, the amount cannot be filled in for a larger sum than that so indicated. Norwich Bank v. Hyde, 13 Conn. 284.

§ 34. 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 (a).

(a) A negotiable instrument must be complete and perfect when it is issued, or there must be authority reposed in some one afterward to supply anything needed to make it perfect. Sedgwick v. McKim, 53 N. Y. 307, 313; Davis Sewing Machine Co. v. Best, 105 N. Y. 59, 67. And mere negligence on the part of the person sought to be held liable will not be sufficient to entitle the holder to recover of him on the instrument. Baxendale v. Bennett, L. R. 3 Q. B. Div. 525. Thus, in the case cited, where a blank acceptance which had been given to one person and returned by him was afterward stolen from the acceptor and another person filled in his own name and negotiated the bill, it was held that there could be no recovery on such acceptance even by a bona fide holder for value. Barnwell, L. J., said: "The defendant here has not voluntarily put into any one's hands the means, or part of the means, for committing a crime. But it is said that he had done so through negligence. I confess I think he has been negligent-that is to say, I think if he had had this paper from a third person as a bailee bound to keep it with ordinary care, he would not have done so. But then this negligence is not the proximate or effective cause of the fraud. A crime was necessary for its completion."

$35. Delivery; when effectual; when presumed.Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto (a). 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 (b) or indorsing, as the case may be; and in such case the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid