some States require that where one part of a bill is forwarded for acceptance, it must be noted on the other parts where such part can be found.1

If a bill is sent in several parts for acceptance beyond the sea, they must be sent by different ships; and an accident to the first ship sailing will extend the time for presenting the bill. Every accepted part is prima facie an original bill in some States. And in some an unaccepted part cannot be paid before maturity. While in Chili it is provided that if several parts are presented after maturity, that which bears the earliest number is to be paid.5

Payment and possession of any part of a bill by the acceptor discharges him. But if he pays a part which has not been accepted, he will be liable afterward to the bona fide holder of an accepted part, and his remedy will be against the person to whom payment has been improperly made." In general, payment of one part discharges all, except as to

383); Ecuador (1829 Code Com. as in Spain); Mexico (1854 Code Com. Art. 330); Peru (1853 Code Com. Art. 396); Salvador (1855 Code Com. Art. 391); Spain (1829 Code Com. Art. 436); Venezuela (1862 Code Com. Art. 5).

'Austria (1850 Exch. Law Art. 68); Denmark (1825 Exch. Law ? 16); Germany (1848 Exch. Law Art. 68); Hungary (1861 Exch. Law? 23); Sweden (1851 Exch. Law (66); Switzerland (Exch. Laws, 1859 Berne, 1863 Basle, 71). "Costa Rica (1853 Code Com. Art. 431); Mexico (1854 Code Com. Art. 378); Nicaragua (1869 Code Com. Art. 268); Salvador (1855 Code Com. Art. 439). Holland (1838 Exch. Law Art. 162); Hungary (1861 Exch. Law 69); Portugal (1833 Code Com. Art. 383); Sweden (1851 Exch. Law ? 65).

'Colombia (1853 Code Com. Art. 459); Costa Rica (1853 Code Com. Art. 452); Ecuador (1829 Code Com., as in Spain, 505); Mexico (1854 Code Com. Art. 397); Peru (1853 Code Com. Art. 460); Salvador (1855 Code Com. Art. 458); Spain (1829 Code Com. Art. 505).

'Chili (1865 Code Com. Art. 720).

6

Argentine Republic (1862 Code Com. Art. 770); Sweden (1851 Exch. Law? 9); Uruguay (1865 Code Com. Art. 797).

*Argentine Republic (1862 Code Com. Art. 865); Belgium (1851 Code Napoleon); Bolivia (1834 Code Com. Art. 398); Brazil (1850 Code Com. Art. 400); Chili (1865 Code Com. Art. 719); Colombia (1853 Code Com. Art. 457); Costa Rica (1853 Code Com. Art. 450); Ecuador (1829 Code Com. as in Spain); France (1807 Code Napoleon Art. 148); Greece (1835 Code Napoleon); Hayti (1826 Code Napoleon); Holland (1838 Exch. Law Art. 161); Italy (1865 Code Com. Art. 233); Lower Canada (1867 Civ. Code Art. 2315); Mexico (1854 Code Com. Art. 395); Nicaragua (1869 Code Com. Art. 279); Peru (1853 Code Com. Art. 458); Portugal (1833 Code Com. Art. 382); Russia (1862 Exch. Law Art. 626); Salvador (1855 Code Com. Art. 456); San Domingo (1829 Code Napoleon); Switzerland (Geneva, Code Napoleon); Spain (1829 Code Com. Art. 503); Turkey (Code Napoleon 105); Uruguay (1865 Code Com. Art. 883); Venezuela (1862 Code Com. Art. 64).

the indorsers and acceptors who have indorsed or accepted other parts. But it is sufficient, if the payment of one part shows on its face that the others are satisfied thereby. The holder, who demands payment from the acceptor of an unaccepted part, is entitled to receive it on giving security.3 And in like manner, he may receive payment on loss of the original bill without producing the other parts, on proving his property and giving security. And if, after offering security, payment is refused, the bill should be protested and demand of a duplicate bill made upon the indorser.5

In Russia there are special provisions for obtaining posses

1Austria (1850 Exch. Law Art. 67); Germany (1848 Exch. Law Art. 67); Switzerland (Exch. Laws, 1859 Berne, 1863 Basle, 73); Uruguay (1865 Code Com. Art. 798).

'Argentine Republic (1862 Code Com. Art. 864); Belgium (1851 Code Napoleon 147); France (1807 Code Napoleon Art. 147); Greece (1835 Code Napoleon); Hayti (1826 Code Napoleon 144); Holland (1838 Exch. Law Art. 160); Italy (1865 Code Com. Art. 232); Portugal (1833 Code Com. Art. 381); San Domingo (1829 Code Napoleon); Switzerland (Geneva, Code Napoleon); Turkey (Code Napoleon 104); Uruguay (1865 Code Com. Art. 882); Venezuela (1862 Code Com. Arts. 5, 63).

Belgium (1851 Code Napoleon); Bolivia (1834 Code Com. Art. 399); Colombia (1853 Code Com. Art. 458); Costa Rica (1853 Code Com. Art. 451); Denmark (1825 Exch. Law 2 61, 62); Ecuador (1829 Code Com. as in Spain); France (1807 Code Napoleon Arts. 150-1); Greece (1835 Code Napoleon); Guatemala (1774 Ordinances of Bilbao 27); Hayti (1826 Code Napoleon); Hungary (1861 Exch. Laws 8 120, 121); Italy (1865 Code Com. Arts. 236–7); Mexico (1854 Code Com. Art. 396); Nicaragua (1869 Code Com. Art. 280); Peru (1853 Code Com. Art. 459); Salvador (1855 Code Com. Art. 457); San Domingo (1829 Code Napoleon); Spain (1829 Code Com. Art. 504); Geneva (Code Napoleon 150-1); Turkey (Code Napoleon 107-8); Uruguay (1865 Code Com. Arts. 900-904); Venezuela (1862 Code Com. Arts. 66–70).

Argentine Republic (1862 Code Com. Art. 883-885); Austria (1850 Exch. Law Art. 73-74); Belgium (1851 Code Napoleon); France (1807 Code Napoleon Art. 152); Germany (1848 Exch. Law Art. 73–74); Greece (1835 Code Napoleon); Hayti (1826 Code Napoleon 149); Italy (1865 Code Com. Art. 238); Lower Canada (1867 Civ. Code Art. 2316); Nicaragua (1869 Code Com. Art. 282-3); Peru (1853 Code Com. Art. 466); Portugal (1833 Code Com. Art. 384); Salvador (1855 Code Com. Art. 461); San Domingo (1829 Code Napoleon); Sweden (1851 Exch. Law 70-71); Switzerland (Exch. Laws, 1859 Berne, 1863 Basle, 77-79); Geneva (Code Napoleon 152); Turkey (Code Napoleon 109); Venezuela (1862 Code Com. Art. 66–70).

Argentine Republic (1862 Code Com. Art. 885-887); Belgium (1851 Code Napoleon 153-4); Colombia (1853 Code Com. Art. 461-4); Costa Rica (1853 Code Com. Art. 454-7); Ecuador (1829 Code Com., as in Spain); France (1807 Code Napoleon Art. 153-4); Greece (1835 Code Napoleon); Hayti (1826 Code Napoleon 150-1); Italy (1865 Code Com. Art. 239-240); Mexico (1854 Code Com. Art. 399-402); Nicaragua (1869 Code Com. Art. 280-4); Peru (1853 Code Com. Art. 467); Salvador (1855 Code Com. Art. 460–463); San Domingo (1829 Code Napoleon); Spain (1829 Code Com. Art. 507–510); Geneva (Code Napoleon 153-4); Turkey (Code Napoleon 110-111); Uruguay (1865 Code Com. Art. 900–904); Venezuela (1862 Code Com. Art. 66–70).

sion and payment of a bill, where the holder has never had the original in his possession but has only a copy.1 And many foreign statutes provide for the giving and indorsing of copies in lieu of the original.2 Some statutes require that it be noted on the copy where the copy ends and the original indorsements begin. And in some countries payment cannot be made at all on a copy without production of at least one of the original parts.*

1Russia (1862 Exch. Law Art. 583-4); Sweden (1851 Exch. Law ?? 67, 69); Switzerland (Exch. Laws, 1859 Berne, 1863 Basle, ¿ 71-2).

"Argentine Republic (1862 Code Com. Art. 772); Austria (1850 Exch. Law Art. 70-72); Bolivia (1834 Code Com. Art. 360); Brazil (1850 Code Com. Art.); Chili (1865 Code Com. Art. 629); Colombia (1853 Code Com. Art. 395); Costa Rica (1853 Code Com. Art. 384); Ecuador (1829 Code Com., as in Spain); Germany (1848 Exch. Law Arts. 70-72, 74-76); Mexico (1854 Code Com. Art. 331); Nicaragua (1869 Code Com. Art. 247); Peru (1853 Code Com. Art. 397); Salvador (1855 Code Com. Art. 392); Spain (1829 Code Com. Art. 437); Switzerland (Exch. Laws, 1859 Berne, 1863 Basle, & 74–76); Uruguay (1865 Code Com. Art. 799); Venezuela (1862 Code Com. Art. 6).

3Hungary (1861 Exch. Law & 24); Sweden (1851 Exch. Law 8 68). *Bolivia (1834 Code Com. Art. 397); Chili (1865 Code Com. Art. 720); Colombia (1853 Code Com. Art. 460); Costa Rica (1853 Code Com. Art. 453); Ecuador (1829 Code Com., as in Spain); Mexico (1854 Code Com. Art. 398); Nicaragua (1869 Code Com. Art. 281); Peru (1853 Code Com. Art. 461); Salvador (1855 Code Com. Art. 459); Spain (1829 Code Com. Art. 506).

CHAPTER VIII.

CAPACITY

I. Civil Restrictions.

II. Alien Enemies.

III. Idiots and Lunatics.

IV. Drunkards.

V. Infants.

244. General Principles.

I. CIVIL RESTRICTIONS.

245. Civil Restrictions-Merchants. 246. Clergy-Soldiers-Farmers. 247. Felons-Bankrupts.

§ 244. General Principles. In general all persons who can make a legal contract can become parties to commercial paper. Want of capacity may be either natural, legal or political, according as it proceeds from mental unfitness or from the requirements of local or public law. Naturally incapable are idiots, lunatics and all persons of unsound or insufficient understanding. Legally incapable are infants, married women and corporations, so far as their restricted by law. And these laws are, in some degree, based on presumptions of natural incapacity. Politically incapable are alien enemies and, to a certain extent, public officers and State and municipal governments.

power

is

It is to be observed at the outset that the making of a note or the drawing of a bill of exchange is an admission of the payee's capacity to receive it. So, the drawing of a bill of exchange admits the payee's capacity at that time to indorse it. And in like manner an acceptor admits, and is esto pped

Esley v. People, 23 Kans. 510 (1880), where the note was made to a State. So, as to a corporation payee's existence, Goodrich v. Reynolds, 31 Ill. 490 (1863); especially at suit of a bona fide holder for value, Camp v. Byrne, 41 Mo. 525 (1867); Nashua F. I. Co. v. Moore, 55 N. H. 48 (1874); and no twithstanding a general prohibition against doing business as a foreign corpora tion, Shook v. Singer S. M. Co., 61 Ind. 520 (1878).

2 Collis v. Emmet, 1 H. Bl. 313; Drayton v. Dale, 2 B. & C. 293 (1823); Phillips v. Im Thurn, 18 C. B. (N. s.) 694 (1865); Brown v. Donnell, 49 Me.

from denying, as against a bona fide purchaser of the accepted bill, the drawer's capacity at that time to bind himself as drawer. So, an indorser cannot question the capacity of a subsequent, though not immediate, indorsee to acquire a note or bill.2

The questions of capacity and authority of parties to make, accept and transfer negotiable paper are governed by substantially the same rules of law that control other contracts.

§ 245. Former Restrictions-Merchants.-No restrictions upon the capacity of a person to enter into a mercantile contract by reason of the character of his trade or occupation now exist in the United States, although it was once thought that none but merchants were capable of binding themselves by a contract under mercantile law. The mercantile character of a party to commercial paper is now of no importance either in this country or in England. And in these countries all persons, who are sui juris and have capacity and understanding sufficient for a valid contract, are competent to become parties to a bill of exchange, note or check.*

By foreign laws, however, distinctions were formerly made, and in some cases still exist, in favor of merchants and to the exclusion of clergymen and other professional men, sol

421 (1860); Nightingale v. Withington, 15 Mass. 272 (1818). And this is true where the payee is known by the maker to be fictitious, Lane v. Krekle, 22 Iowa 399 (1867). But the insanity of the payee and indorser may be set up in defense by the maker, Burke v. Allen, 29 N. H. 106 (1854); Peaslee v. Robbins, 3 Metc. 164 (1841).

'Cooper v. Meyer, 10 B. & C. 468 (1830). So held as to a married woman's capacity, Smith v. Marsack, 18 L. J. C. P. 65 (1848), and that of a bankrupt, Braithwaite v. Gardiner, 8 Q. B. 473 (1846); and that of a corporation, Halifax v. Lyle, 3 Exch. 464 (1849).

2

National Pemberton Bank v. Porter, 125 Mass. 333 (1878).

Chitty 20; Story on Bills 71; Story on Prom. Notes &61; Bromwich v. Loyd, Lutw. 1585 (1697). In Fairley v. Roch, Lutw. 891 (1687), it was held on demurrer that an allegation of a custom of merchants as to bills of exchange applicable to " 'any merchant or other person was too general, but in Bromwich v. Loyd, supra, it was said by Treby, C. J., that no allegation of custom was necessary and that the law of mercantile bills of exchange "at first extended only to merchants, strangers trading with English merchants, and afterwards to inland bills between merchants trading one with another in England, and after that to all traders and dealers, and of late to all persons trading or not."

'Chitty 20; Sarsfield v. Witherly, 2 Vent. 295; Hodges v. Steward, 12 Mod. 36; S. C., 1 Salk. 125.