though, by the law of the State, no note is negotiable unless payable at a specified bank, the note will be negotiable, and governed by the law merchant in the hands of a bona fide indorsee.1 In some of the States of the United States the place of payment is made by statute the criterion of negotiability. Where it is necessary to negotiability that the 1 Gillaspie v. Kelly, 41 Ind., 158; Spitler v. James, 32 Ind., 203. See post, $144. 2 Thus in Alabama it was formerly provided by statute, Code of 1867, § 1833, that "Bills of exchange and promissory notes payable in money at a bank or private banking house are governed by the commercial law, except so far as the same is changed by this code." Subsequently, by Acts of 1872-3, p. 111, 1833, of the Code of Alabama, was amended to read as follows: "Bills and notes payable at a banker's, or a designated place of payment, are negotiable instruments; bills of exchange and promissory notes payable in money at a bank, or a certain place of payment therein designated, are governed by the commercial law." This statute is expounded in Oates v. National Bank, 100 U. S. (10 Otto), 239. It has been held in Georgia that a note payable at "H. & J." does not upon its face show that it was made for the purpose of negotiation at a chartered bank; and that the fact that suit thereon is brought against the indorsers by H. & J., and who are described in the pleadings as lately bankers doing business under the name, style, and firm of H. & J., is not sufficient to prove that H. & J. is a chartered bank. Salmons v. Hoyt, 53 Ga., 493. In Virginia, the Code (see Code of 1873, c. 141, § 7) provides that " Every promissory note, or check for money, payable in this State (1) at a particular bank, or (2) at a particular office thereof for discount and deposit, or (3) at the place of business of a savings institution or savings bank, or (4) at the place of business of a licensed broker; and every inland bill of exchange payable in this State shall be deemed negotiable, and may, upon being dishonored for non-acceptance or non-payment, be protested, and the protest be in such case evidence of dishonor in like manner as in the case of a foreign bill of exchange." The words italicised, "at the place of business of a licensed broker," were interpolated by an amendment of the Code in 1866, at the instance of the Richmond brokers. Acts of Assembly, 1866, p. 490. The declaration that every inland bill of exchange payable in this State shall be deemed negotiable, is only confirmatory of the common law. If payable in another State, its negotiability is to be determined there. In the Freeman's Bank v. Ruckman, 16 Grat., 126, the note sued on was executed in Boston, Mass., and was payable "at either of the banking houses in Wheeling, Va." Judge Moncure said: "The note was not payable at a particular bank, or at a particular office thereof, etc. (following the statute), but at either of the banking houses in Wheeling, Va.' and therefore is not a negotiable note." It is not necessary in Virginia that the note, in order to be negotiable, be expressly payable in that State: "It is certainly true that such note, etc., must on its face be payable in this State, because the section so requires. But it does not require that the State shall be expressly named in the note." McVeigh v. Bank of the Old Dominion, 26 Grat., 830. Moncure, P. See Woodward v. Gunn, Virginia L. J., April, 1878, p. 243. In this case it was held, that a note on which the place of payment, after the word at, in a printed note, was left blank, but was intended to be filled with the name of a bank in Virginia, thus making the note negotiable, might under the peculiar circumstances which appeared be treated as negotiable, although in fact the blank for the place of payment was never filled. See Broun v. Hull, 33 Grat., 31, in which case the bank ceased to exist after the note was made; and the J.M. Hantsberger note be payable at a bank in the State, and a note is made in the State, payable at a bank, it will be presumed that the bank is in the State.1 § 91. Fifthly, as to the name of the drawer or maker. It is of the first importance, indeed indispensable, that the bill or note should point out with certainty the party who enters into the contract imported by its terms, and if the promise be in the alternative, it is not a good negotiable instrument. Thus, where the note ran, "I, A. B., promise to pay," and was signed “A. B. or else C. D.," the court said: "This is not a promissory note against this defendant, within the statute of Anne. It operates differently as to the two parties. It is the absolute undertaking on the part of Corner (A.) to pay, and it is conditional only on the part of the defendant (B.), who undertakes to pay only in the event of Corner's not paying." But it has been said that such an instrument would be a good note as against A.3 3 § 92. The name of the drawer is absolutely needful upon the face of the bill; for without it the drawee can not tell whether he should accept it or not, or any holder know to whom notice should be given. Indeed, it is paradoxical to speak of a bill without a drawer; for the very term imports a negotiable order drawn by some one. And even when such an instrument bears the name of one upon it who court, considering the effect of this fact on an indorsement after maturity, 1 1 McGuirk v. Cummings, 54 Ind., 246. ion, 26 Grat., 830, and supra. * Ferris v. Bond, 4 Barn. & Ald., 679; Story on Notes, § 34; 1 Parsons N. & B., 36-7; Chitty, [*140], 162. 3 Byles (Sharswood's ed.), [*92], 190; see Edwards on Bills, 134. This seems to be there implied by the author's language. * Story on Bills, § 53; Benjamin's Chalmer's Digest, 4. signs as acceptor, it is still nothing more than an inchoate paper, which can not be sued upon unless a drawer's name is authoritatively inserted in it. And it has been well said that it is "an abuse of terms to say that one was the acceptor of a bill which had never been drawn; or, in other words, that he had accepted an 'order,' or 'request,' that had never been made upon him." But authority to insert the name of a drawer to such an inchoate paper would be prima facie presumed; and if inserted without author 1 Tevis v. Young, 1 Metc. (Ky.), 199; May v. Miller, 27 Ala., 515; Byles on Bills (Sharswood's ed.) [*83], 178.' In McCall v. Taylor, 10 C. B. N. S., 30; 34 L. J., 365, C. P. Erle, C. J., said: "The instrument has no date and no drawer's name, but the defendant wrote his acceptance across it, and the question is, has the holder of such an instrument the right to declare on it, either as a bill of exchange or promissory note? It certainly is not a bill of exchange, nor is it a promissory note. It is, in fact, only an inchoate instrument, though capable of being completed." According, see Stoessiger v. S. E. R.R. Co., 3 El. & B., 549; 23 L. J. Q. B. Regina v. Harper, English High Court Cr. Cases. Central L. J., Sept. 2, 1881, p. 174. 2 Tevis v. Young, 1 Metc. (Ky.), 199. In this case the instrument sued on was in the form of a bill, but no name was signed as drawer. In was dated Shelbyvile, and addressed "To W. G. Rogers, Shelbyville"; accepted by Rogers, and indorsed "John Tevis." Suit was brought by Young against Tevis as indorser, and Rogers as acceptor; but it was held that the instrument was incomplete, and the action could not be maintained. It was said by the court, per Duval, J. (Simpson, J., dissenting): "The fallacy of all the reasoning of counsel upon this point, consists in their failure to recognize the distinction between a bill of exchange and the mere form of such an instrument. The words written upon the face of the paper in question are utterly inoperative, and without force or legal effect for any purpose as a commercial instrument, without the name of a drawer, either subscribed to the paper, or inserted in the body of it. Whether the name of the drawer, or of any subsequent party to the bill, be forged or fictitious, makes no difference as it respects the liability of the indorser. The indorsement implies an undertaking that the antecedent parties are competent to draw and accept the bill, and that their signatures are genuine. But the indorsement does not imply an undertaking that the paper indorsed contains the names of all the antecedent parties necessary to constitute a valid bill of exchange, when the face of the paper itself shows that it is blank as to all or any of such names. The indorsement of the paper would, doubtless, confer upon the party intrusted with it, authority to fill up the blanks with the names of any parties, at the discretion of the latter; and so, the indorsement of a piece of blank paper would give the holder authority to make a bill of exchange, upon which the indorser would be liable, in the hands of an innocent holder for value, for whatever amount, or in the names of whatever parties the bill might be subsequently drawn and accepted. But certainly it can not be supposed that in either of the cases stated, the indorser could be held liable, as such, until the paper should have been drawn and executed and completed as a bill of exchange. It is not the mere authority to make a bill, which of itself creates the liability, but it is the execution of that authority." Harvey v. Cane, 34 L. T. R., 64 (1876). See post, §§ 142, 147, 843, 844; Scard v. Jackson, 34 L. T. R., 65, note a; Moies v. Knapp, 30 Ga., 942; Benjamin's Chalmer's Digest, 35, 46; In re Duffy, 5 L. R., Ireland, 927. ity, the acceptor would be bound to a bona fide holder without notice.1 § 93. Maker estopped to deny capacity of payee to indorse. By executing a promissory note, the maker engages to pay the amount therein named to be the bearer, if it be payable to bearer; to the payee or order, if it be payable to a particular person or order. By the very act of engaging to pay to a particular payee he acknowledges his capacity to receive the money; and also his capacity to order it to be paid to another. And therefore if the maker is sued by an indorsee of the payee, he can not defend himself on the ground that the payee had no capacity to indorse it by reason of being an infant, a married woman,3 a bankrupt,* a fictitious person, a corporation without legal existence, or that such payee was insane at the time the note was executed; though, if the payee became insane after the execution of the note, his indorsement would then be a mere nullity, and if the acceptor knew of such insanity he would not be justified in making payment to any one whose title was affected by it. There are authorities which hold that the insanity of the payee at the time the paper was executed may be shown; but they have been sharply criticised,10 and do not accord with the general principle of estoppel applied to negotiable paper. 'See these questions discussed, post, §§ 131, 132, 142, 147, 843, 844. The Scotch law accords, Smith v. Taylor, Court of Sessions, Feb. 27, 1824; Ames on B. & N., 1 Vol., 884. And so also the Irish law, In re Duffy, 5 L. R., Ireland, 92. 2 Taylor v. Croker, 4 Esp., 187; Jones v. Darch, 4 Price, 300; Grey v. Cooper, 3 Doug., 65. 3 5 Smith v. Marsack, 6 C. B., 486, Wilde, C. J. 'Drayton v. Dale, 2 Barn. & Cress., 293. * Lane v. Krekle, 22 Iowa, 404. See §§ 136, 139. Massey v. Building Ass'n, 22 Kan., 634; Stoutimore v. Clark, 70 Mo., 477; Nat. Ins. Co. v. Bowman, 60 Mo., 252; Farmers' & M. Bank v. Needles, 52 Mo., 17; City of St. Louis v. Shields, 62 Mo., 247; Ray v. Indianapolis Ins. Co., 39 Ind., 290; John v. Farmers' Bank, 2 Blackf., 367; Vater v. Lewis, 36 Ind., 291; Snyder v. Studebaker, 19 Ind., 462; Greiner v. Úlery, 20 Iowa, 266. See Smith v. Marsack, supra. See Bigelow on Estoppel, 450, 541; Alcock v. Alcock, 3 Man. A. G., 268; (42 E. C. L. R.) The fact of lunacy came to defendant's knowledge pending the trial. 9 Peaslee v. Robbins, 3 Metc. (Mass.), 164. 10 Bigelow on Estoppel, 450, 451. 94. Joint and several notes.—A note by two or more makers may be either joint, or joint and several. A note signed by more than one person, and beginning "we promise," is joint only. A joint and several note usually expresses that the makers jointly and severally promise. But a note signed by more than one person, and beginning "I promise," is several as well as joint; and so also is one signed by two makers, and running "we or either of us promise to pay." And where two have signed a joint note, "payable to the order of myself," it means payable to the order of either, and the indorsement of either carries a good title. If a note running "we promise" is signed by but one person, he is bound just as if the language were "I promise."5 If a note be signed by a person in the name of a firm, whether that name represents in form more than one person, as "A. & Co.," or only one person, as “A.," it is in both cases the joint note of the firm, and all the partners will be bound, whether the language be "I" or "We" promise. If the note runs "We promise," and is signed "A. B., principal; C. D., surety," it is still the joint note of both; and if it were written "I promise," and signed in the same manner, it would be the joint and several note of both. A joint and several note, though on one piece of paper, comprises in reality and in legal effect, several 1 Barrett v. Funay, 38 Ind., 86; Thomson gn Bills, 156. 2 Monson v. Drakely, 40 Conn., 552; 552; Maiden. Webster, 30 Ind., 317; Holman v. Gilliam, 6 Rand., 39; Hemmenway v. Stone, 7 Mass., 58; Barrett v. Skinner, 2 Bailey, 88; Marsh v. Ward, Peake, 130; Ely v. Clute, 19 Hun. (N. Y.), 35; Dill v. White, 52 Wisc., 169; Partridge v. Colby, 19 Barb., 248; Ladd v. Baker, 6 Fost., 76; Lane v. Salter, 4 Rob. (N. Y.), 239; Galway v. Mathew, I Camp., 462. 21 0.81-163,5am. R.48 Pogue v. Clark, 25 Ill., 335; Harvey v. Irvine, 11 fowa, 82; First N. B. v. Fowler, 36 Ohio St., 524. First N. B. v. Fowler, 36 Ohio St., 524. 'Whitmore v. Nickerson, 125 Mass., 496; Rice v. Gove, 22 Pick., 158; Holmes v. Sinclair, 19 Ill., 71. Rees v. Abbott, Cowper, 832. 'Hunt v. Adams, Mass., 358; Palmer v. Grant, 4 Conn., 389. |