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ferrer. But for the purpose of determining whether the transferee is a holder in due course, the negotiation takes effect as of the time when the indorsement is actually made.

"(Sec. 50.) Where an instrument is negotiated back to a prior party, such party may, subject to the provisions of this Act, reissue and further negotiate the same, but he is not entitled to enforce payment thereof against any intervening party to whom he was personally liable.'

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Question 467: (1) A check is intended for Albert Norton, but is made out to "Alfred Norwood." Can Norton use this check?

(2) A check is made payable to "James Owen, administrator." What can Owen do to escape personal liability in further negotiation.

(3) What is the presumption as to when an undated indorsement was made with respect to maturity? Could the contrary be shown to be the fact?

(4) What is the presumption as to place of indorsement?

(5) May an instrument be negotiated after its maturity? What sort of indorsement before maturity will stop further negotiation? (Note: The fact that a note continues negotiable after maturity until discharged by payment or otherwise, is to be connected with the fact that the transferee after maturity is not a holder in due course if that becomes of any moment on account of defenses sought to be made against the purchaser by the party primarily liable.)

(6) What indorsements may be stricken out?

(7) Where indorsement is necessary to negotiation and is omitted what rights has the transferee? When does he become a holder in due course?

Case 468. First Nat. Bk. v. McCullough, 50 Ore. 508, 17 L. R. A. (N. S.) 1105.

Facts: Suit by the bank on two notes. The bank claims as indorsee under the following indorsement: "Pay A. B. Nixon, or order, waiving demand and notice of protest. H. L. Moody." Dixon was in fact cashier of the bank. The bank claims that as the note was payable to its cashier, it can sue thereon.

Point Involved: Whether an indorsement to a cashier in fact, if not stated to be cashier, may be considered indorsement to the bank, if that was the intention.

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MOORE, J.: The rule to be extracted from these decisions has been embodied in our statute known as the 'uniform negotiable instruments law' as follows: 'Where an instrument is drawn or endorsed to a person as "cashier" or other fiscal officer of a bank or corporation, it is deemed prima facie to be payable to the bank or corporation of which he is such officer, and may be negotiated by either the indorsement of the bank or corporation or the indorsement of the officer.'

The clause just quoted and the decisions adverted to are undoubtedly based on the theory that the employment of the qualifying word 'cashier' or other designation of a fiscal office, appended to the name of a payee or indorsee of commercial paper, creates an ambiguity as to the real party intended, to explain which parol evidence is admissible to show who is the principal for whose benefit such agent received or accepted the promise to pay a stipulated sum of money. In the case at bar, however, no official designation is added to Nixon's name and hence no uncertainty is apparent and parol evidence

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is inadmissible to control or vary the terms of the writing.

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Question 468: What is the rule as to instruments drawn payable to or indorsed to a cashier? What is lacking in the above. case to bring it within that rule? In what way was the deficiency sought to be overcome? If the cashier had indorsed to the bank would it have a good case?

Case 469. Uniform Negotiable Instruments Act, Sec. 41.

"Where an instrument is payable to the order of two or more payees or indorsees who are not partners, all must indorse unless the one indorsing has authority to indorse for the others."

Question 469: A note payable to order of John Smith and his sister Grace Smith. An indorsement by John Smith. Has the indorsee good title on any assumption?

B. Kinds of Indorsements.

§§ 456 to 460. (Nego. Instru., Secs. 64-68.)

Case 470. Uniform Negotiable Instruments Act, Secs. 33 to 40.

"(Sec. 33.) An indorsement may be either in blank or special; and it may also be either restrictive or qualified, or conditional.

"(Sec. 34.) A special indorsement specifies the person to whom or to whose order the instrument is to be payable; and the indorsement of such indorsee is necessary to the further negotiation of the instrument. An indorsement in blank specifies no indorsee, and an instrument so indorsed is payable to bearer, and may be negotiated by delivery.

"(Sec. 35.) The holder may convert a blank indorsement into a special indorsement by writing over the signature of the indorser in blank any contract consistent with the character of the indorsement.

"(Sec. 36.) An indorsement is restrictive which either:

"1. Prohibits the further negotiation of the instrument; or

or

"2. Constitutes the indorsee the agent of the indorser;

"3. Vests the title in the indorsee in trust for or to the use of some other person. But the mere absence of words implying power to negotiate does not make an indorsement restrictive.

"(Sec. 37.) A restrictive indorsement confers upon the indorsee the right:

"1. To receive payment of the instrument.

"2. To bring any action thereon that the indorser could bring.

"3. To transfer his rights as such indorsee where the form of the indorsement authorizes him to do so.

"But all subsequent indorsees acquire only the title of the first indorsee under the restrictive indorsement.

"(Sec. 38.) A qualified indorsement constitutes the

indorser a mere assignor of the title to the instrument. It may be made by adding to the indorser's signature the words 'without recourse' or any words of similar import. Such an indorsement does not impair the negotiable character of the instrument.

"(Sec. 39.) Where an indorsement is conditional, a party required to pay the instrument may disregard the condition, and make a payment to the indorsee or his transferee, whether the condition has been fulfilled or not. But any person to whom an instrument so indorsed is negotiated, will hold the same, or the proceeds thereof, subject to the rights of the person indorsing conditionally.

"(Sec. 40.) Where an instrument originally payable to or indorsed specifically to bearer is subsequently indorsed specially it may nevertheless be further negotiated by delivery; but the person indorsing specially is liable as indorser to only such holders as make title through his indorsement."

Question 470: (1) Define special indorsement; blank indorsement; restrictive indorsement; qualified indorsement; conditional indorsement.

(2) How may a blank indorsement be changed? What effect would this have on the manner of further indorsement?

(3) What right has one to whom an instrument has been restrictively indorsed? Does the restrictive indorsement prohibit further transfer.

(4) What is a qualified indorsement? Does such indorsement restrict further transfer?

(5) What is a conditional indorsement? Does it restrict further transfer? Who may disregard the condition?

(6) A note is payable to bearer. The bearer indorses it specially to X. X transfers it to Y without indorsement. Does Y have title?

(Note: As to liability of general indorser and qualified indorser and transferror without indorsement, see Liability of Parties hereafter.)

(Note: Sec. 40 of the Negotiable Instruments Law, that "Where an instrument payable to bearer is indorsed specially, it may nevertheless be further negotiated by delivery," is con

trary to the general understanding of bankers and other business men and seems inconsistent with the idea of a special indorsement, and ought, it seems, to be expunged. The effect of the language is that if an instrument is payable to bearer upon its face, it may be negotiated without indorsement notwithstanding before such negotiation it has been specially indorsed to the party so transferring it. Thus: A note is payable to bearer. The bearer indorses "Pay to X. Y." X. Y. transfers to A. B. without indorsement. A. B. has good title.)

Case 471. Interstate Trust Co. et al. (Defendants) v. United States National Bank (Plaintiff), 185 Pacific (Colorado) 260.

Facts: The United States National Bank sued the defendants, to recover from either or both the amounts paid on eight checks aggregating $2680.16 which had been paid to defendant, the First National Bank, for the defendant the Interstate Trust Company. The checks in question were deposited by George Kelston, who had erased the name of the original payees and inserted his own and then deposited them to his credit with Interstate Trust Company. The checks were indorsed by the Trust Company as follows: "Pay to the order of any Bank or Banker-previous indorsements guaranteed" and deposited to its credit with the First National Bank. The latter bank indorsed the same "Received payment through the Denver Clearing House" and presented them to plaintiff, the United States Bank, on whom the checks were drawn who paid the checks through the Clearing House. After discovering the fraud, the United States Nat. Bank sues the defendants as indorsers.

BAILY, J. delivered the opinion of the Court

"It is urged by plaintiffs in error that the indorsements: 'Pay to the order of any bank or banker-previous indorsements guaranteed,' made by the Interstate Trust Company, and 'Received payment through the Denver Clearing House,' by the First National Bank, were collection, or restrictive indorsements, and that the indorsers guaranteed nothing as to the genuineness or

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