as dated when it was made; but a written date is prima facie evidence (that is, evidence which may be overcome by opposite and better evidence, but until so overcome is sufficient) of the time of making. The amount is usually written in figures at the corner or bottom. If the sum is written at length in the body, and also in figures at the corner, it seems that the written words control the figures, and evidence is not admissible to show that the figures were right and the words inaccurate. Thus, in an American case, a promissory note, expressed to be for "thee hundred dollars," and in figures in the margin, $300, was held to be a good note for three hundred dollars, if the maker when he signed it intended "thee" for "three"; and whether such was his intention was a question for the jury. But the omission of such a word as "dollars," or "pounds," or "sterling," may be supplied, if the meaning of the instrument is quite clear.

2. The Payee must be designated. The payee should be distinctly named, unless the bill or note be made payable to bearer. If it can be gathered from the instrument, by a reasonable or necessary construction, who is the payee, that is enough. Thus, in an English case, an instrument in the following form: "Received of A. B. £100, which I promise to pay on demand, with lawful interest," was held to be a promissory note. The note may be made payable to the promisor or his order; that is, a man may say, I promise to pay to my own order; and such note is nothing until the promisor not only signs it, but indorses it.

Any note indorsed in blank is always transferable by delivery, just as if it were made payable to bearer; because any holder may write over the indorsement an order to pay to himself. Indorsements are either indorsements in blank, by which is meant the name of the indorser and nothing more, or indorsements in full, which are so called when the name of the indorsee is written over the name of the indorser. These two kinds of indorsements are fully explained subsequently, in section VI. of this chapter. A note to the order of the promisor, and indorsed by him in blank, is therefore much the same thing as a note to bearer. But it is quite commonly used in

our mercantile cities, because the holder can always pass it away without indorsing if he chooses, or can put his name on it as second indorser if he likes to. And if he be named, and the note get into the possession of a wrong person of the same name, this person neither has nor can give a title to it. If the name be spelt wrong, evidence of intention is receivable. If a father and son have the same name, and the son have possession of the note and indorse it, this would be evidence of his rightful ownership; but in the absence of evidence, it has been said that the presumption of law would give the note to the father; but this must depend on circumstances.

If neither payable to bearer, nor to the maker's or drawer's order, nor to any other person, it would be an incomplete and invalid instrument. If the payee of a bill be fictitious, and the drawer indorse it with the fictitious name, the acceptor is not liable thereon to the holder, unless at the time of the acceptance the acceptor knew the name to be fictitious. In that case, the bill may be considered as payable to bearer; or the amount may be recovered as a general debt; as it may if the acceptor did not know the name to be fictitious, but the money paid by the holder of the bill for it had passed into the acceptor's hands.

A note to a fictitious payee, with the same name indorsed by the maker, would undoubtedly be held to be the maker's own note, either payable to bearer, or to himself or order, by another name, and so indorsed. If a blank be left in a bill for the payee's name, a bona fide holder may fill it with his own, the issuing of the bill in blank being an authority to a bona fide holder to insert the name. And if the name of the payee be not the name of a person, as if it be the name of a ship, the instrument is payable to bearer. A note payable to different persons in the alternative, that is, to one or the other of them, is not a good promissory note. A bill or note "to the order of" the plaintiff, is the same as if to him "or his order," and may be sued by him without indorsement.

The law in

3. Of Ambiguous and Irregular Instruments. relation to protest and damages makes it sometimes important to distinguish between a promissory note and a bill of ex

change The rule in general is, that, if an instrument be so ambiguous in its terms that it cannot be certainly pronounced one of these to the exclusion of the other, the holder may elect and treat it as either. As if written, "Value received, in three months from date, pay the order of H. L. $500. (Signed) A. B."; and an address or memorandum at the bottom, "At Messrs. E. F. & Co." It has been held that an indorsement upon a bond, ordering the contents to be paid to A or order, for value received, is a good bill. So also a direction to pay the amount of a promissory note written under the same by the promisor; so that the person directed, if he accepts, is liable as acceptor of a bill. So, where a certificate of deposit in a bank, payable on a future day to the order of A, was indorsed for value to B by A, it was held that the indorsement constituted a bill of exchange. An agreement in the instrument itself to give further security, would prevent it from being a negotiable promissory note or bill; but not, as it seems, a statement that security has been given.

4. Of Bank-Notes.-Bank-notes or bank-bills are promissory notes of a bank, payable to bearer; and, like all notes to bearer, the property in them passes by delivery. They are intended to be used as money; and, while a finder, or one who steals them, has no title himself against the owner, still, if he passes them away to a bona fide holder, that is, a holder for value without notice or knowledge, such owner holds them against the original owner. And if the bank pays them in good faith on regular presentment, the owner has no claim. They pass by a will bequeathing money. They are a good tender, unless objected to at the time because not money. Forged bills, given in payment, are a mere nullity. Bills of a bank which has failed, but of which the failure is unknown to both parties, are now, generally, put on the footing of forged or void bills; although there is some conflict on this subject. But if the receiver of them, by holding them, and by a delay of returning or giving them up, injures the payer and impairs his opportunity or means of indemnity, the receiver must then lose them.

5. Of Checks on Banks. A check on a bank is undoubtedly a bill of exchange; but usage and the nature of the case have introduced some important qualifications of the general law of bills, as applicable to checks. A check requires no acceptance, because a banker, after a customary or reasonable time has elapsed since deposit, is bound to pay the checks of the depositors. The drawer of a check is not a surety, as is the drawer of a bill, but a principal debtor, like the maker of a note. Nor can a drawer complain of any delay whatever in the presentment; for it is an absolute appropriation to the holder of so much money in the banker's hands; there it may lie at the holder's pleasure. But delay is at the holder's risk; for if the bank fails after he could have got his money on the check, the loss is his, and so it is if the bank before he presents his check pay out all the money of the drawer on other checks. But he may then look to the drawer. An acceptance of the drawer, payable at the bank, and paid by the bank, if it exhaust the drawer's funds so that none are left for his check, is a good defence to an action against the bank for non-payment of the check.

If one who holds a check as payee, or otherwise, transfers it to another, he has a right to insist that the check should be presented in the course of the banking hours of that day, or at farthest the next; that is, he is not responsible for the failure of the bank to pay, unless it is so presented, provided it would then have been paid. And if the party receiving the check live elsewhere than where the bank is, it seems that he should send it for collection the next day; and if to an agent, the agent should present it, at latest, in the course of the day after he receives it. If the check be drawn when the drawer neither has funds in the bank, nor has made any arrangement by which he has a right to draw the check, the drawing it is a fraud, and the holder may bring his action at once against the drawer, without presentment or notice.

Checks are seldom accepted. But they are often marked by the bank as good; and it is said that this binds the bank as an acceptor. And from the nature of a check, and the use to which it is applied, it has been inferred that, if a check be drawn for value against funds, and the drawer afterwards

order the bank to refuse payment of it, and, while the bank has still the funds of the drawer in its hands, it receives notice of the check and a demand of its contents, the bank should be bound to pay it and entitled to appropriate to the payment the necessary amount from the funds of the drawer. But this would be contrary to the general law of bills of exchange, which certainly do not operate as an absolute appropriation of the funds in the hands of the acceptor, until after his acceptance.

Checks are usually payable to bearer; but may be and often are drawn payable to a payee or his order; for this guards against loss or theft, and gives to the drawer, when the check is paid, the receipt of the payee. Generally, a check is not payment until it is cashed; but then it is payment; to make it so, however, it must be shown that the money was paid to the creditor, or that the check had passed through his hands. A bank cannot maintain a claim for money lent and advanced, merely by showing the defendant's check paid by them, because the general presumption is, that the bank paid the check because drawn by a depositor against funds.

It is said that, while the death of a drawer countermands his check, if the bank pay it before notice of the death reaches them, they are discharged. This would seem to be almost a necessary inference from the general purpose of banks of deposit, and the use which merchants make of them.

If a bank pay a forged check, it is so far its own loss, that the bank cannot charge the money to the depositor whose name was forged. But we think the bank could recover the money back from one who presented a forged check innocently, and was paid, provided the payee loses no opportunity of indemnity in the mean time, and can be put in as good a position as if the bank had refused to pay it. But if somebody must lose, the bank should, because it is the duty of the bank to know the writing of its own depositors. If it pay a check of which the amount has been falsely and fraudulently increased, it can charge the drawer only with the original amount. But if the drawer himself caused or facilitated the forgery, as by carelessly writing it so, or leaving it in such hands, that the forgery or alteration was easy, so that it may be called his