import of the paper is not changed, but remains at six per cent. still, then certainly that alteration which changes the note from a legal to an illegal contract, must be a material alteration.

The contract was for six per cent.; it is now seven. It cannot be the same thing if one was legal and the other not.

The argument, therefore, which proves the alteration not material, by showing that the legal import of the paper is the same, whether the rate be six or seven answers itself, when it also shows that the contract at six is lawful and at seven is not.

This illustration may serve to show what is meant by varying the legal import of paper.

A note is given containing the words "with interest." Upon examining it subsequently, the recipient, perhaps not being well versed in the law, says to himself: "I was to have six per cent. interest, and this does not say so. The intention of the parties is not fully expressed."

He therefore inserts the word "six." This could not be claimed to be a material alteration. The note only now expressed what the parties had before intended. And this is a just criterion. If the alteration only says what the parties meant, it is a harmless one. But can it be, in the case at bar, that the change only expressed what the parties meant in the first place? Can it be claimed that when six was originally written seven was intended? Or does the note, in its new shape, evince the idea as it was at the time of the execution of the paper?

Another consideration shows the materiality of this alteration. If this note were sued on in New York, where the legal rate is seven per cent. that rate of interest could be recovered, unless the defense was made that such recovery was against the law of Ohio, where the paper was executed. The defendant would then be put to the trouble and expense of proving what the law of Ohio was, as he would be compelled to prove any other fact. And an alteration that required a defendant to furnish other or different proof is material. So any alteration which changes the evidence or mode of proof is material: 2 Pars. N. &. B. 54-582.

We conclude, therefore, that this is a material alteration. The identity of the paper is destroyed and the surety has the right to say, in hoc foedere non veni.

The defendant made a motion for judgment non obstante. The special verdict of the jury, in answer to the third interrogatory, that the note was altered by one of the principals with the consent or by the direction of the plaintiff, and in answer to the fifth, that it was without the consent of the surety, Harsh.

As we understand the law, a material alteration of a note, by a prin

cipal, with the consent of the owner and holder, and without the consent of the surety, discharges such surety.

By 277 of the Code, "when the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the Court may give judgment accordingly." Upon these findings, therefore, the defendant is entitled to judgment.

The case will be remanded to the Common Pleas, with directions to reverse the judgment of that Court, and enter judgment for defendant.

PRESENTMENT FOR ACCEPTANCE MUST BE PROVED

CHEEK V. ROPER

5 Esp. 175. (1805)

Assumpsit on a bill of exchange against defendant as drawer.

The declaration stated in the usual form that the defendant drew his bill of exchange for £60 on one J. Hammond, a tanner, in Bristol, which was duly shown, and presented to the said Hammond for his acceptance, etc., who refused to accept or pay the same by reason whereof the defendant became liable.

To prove the fact of the bill having been presented to Hammond for his acceptance, the plaintiff proved that the bill was sent by the witness, who was called, who carried it to the place which was described to him as Hammond's house, he offered it to some person in a tan-yard, who refused to accept it; but he did not know Hammond's person, nor could he swear that the person to whom he offered the bill was he, or represented himself to be so.

Lord Ellenborough said that the allegation respecting the bill was a material one, as the drawer could only become liable on the acceptor's default, which default must be proved. That the evidence here offered proved no demand on Hammond, and was therefore insufficient so that the plaintiff could not recover on the bill. Some evidence must be given of an application to the party first liable.

WHERE THE MAKER OF A NOTE HAS NO PLACE OF BUSINESS, A PRESENTMENT AT HIS RESIDENCE AT 9.00 P. M. ON THE DAY OF MATURITY IS GOOD

FARNSWORTH V. ALLEN

4 Gray Mass. 453 (1855)

Action of contract against the indorser of the following promissory

note:

"Boston, May 23, 1854. "Three months after date I promise to pay to the order of Walter M. Allen one hundred and fifty dollars, value received.

"FRANCIS FREEMAN."

At the trial in the court of common pleas, a witness testified that he received the note, at the close of bank hours on the last day of grace, from the Grocers' Bank in Boston, who had received the note for collection from the Cambridge Market Bank, but did not know the residence of the maker or indorser; that he inquired of a director of the Cambridge Market Bank, and learned that the maker lived at Winchester and the indorser at North Cambridge; and the same afternoon carried the note to a notary public in Charlestown, and told him where the parties resided.

The notary public testified that, as soon as he could after receiving the note for protest, he went to the house of the maker, (about ten miles from Boston,) and arrived there about nine o'clock in the evening; that there was no light in the house, and the inmates appeared to have retired for the night; that he rung the bell, and after some time the maker came to the door with a light; and he presented the note, stated its contents, and demanded payment, which the maker refused, saying that he could not, or should not, or would not pay it; that he returned with the note to Charlestown, and on the same evening put in the post office a proper notice of dishonor, addressed to the defendant at North Cambridge.

The defendant contended that the demand proved was not sufficient to charge the indorser. But Hoar, J., ruled otherwise, the jury returned a verdict for the plaintiff, and the defendant alleged exceptions.

BIGELOW, J. The note declared on, not being payable at a bank, or at any place where business was transacted during certain stated hours in each day, was properly presented to the maker at his place of residence. It was also the duty of the holder to present it within reasonable hours on the day of its maturity. No fixed rule can be established,

by which to determine the hour beyond which a presentment, in such case, will be unreasonable and insufficient to charge an indorser. Generally, however, it should be made at such hour that, having regard to the habits and usages of the community where the maker resides, he may be reasonably expected to be in a condition to attend to ordinary business. In the present case, taking into consideration the distance of the place of residence of the maker from Boston, where the note was dated, and where it was held when it became due; the means that were taken to ascertain the residence of the maker, and the season of the year at which the note fell due, we are of opinion that a presentment at nine o'clock in the evening was seasonable and sufficient. It is quite immaterial that the maker and his family had retired for the night. The question whether a presentment is within reasonable time cannot be made to depend on the private and peculiar habits of the maker of a note, not known to the holder; but it must be determined by a consideration of the circumstances which, in ordinary cases, would render it seasonable or otherwise. (Barclay v. Bailey, 2 Campb. 527; Triggs v. Newnham, 10 Moore, 249, and 1 Car. & P. 631; Wilkins v. Jadis, 2 B. & Ad. 188; Cayuga County Bank v. Hunt, 2 Hill, N. Y. 635.). Judgment affirmed.

A PURCHASER WHO PAID $5.00 FOR A PROMISSORY NOTE OF $300 EXECUTED BY A SOLVENT MAKER IS NOT A BONA FIDE HOLDER FOR VALUE

DE WITT V. PERKINS

22 Wis. 451 (1868)

Appeal from the County Court of Milwaukee County.

Action on defendant's promissory note. The Jury, by direction of the court, found for the plaintiff; and the defendant appealed from the judgment. The question in dispute will sufficiently appear from the opinion.

DIXON, C. J. The plaintiff, knowing the defendant, and that he was in fair credit and able to respond, purchased, shortly before its maturity, a promissory note against him for three hundred dollars and interest for six months, paying therefor only the sum of five dollars. As between the defendant and the payee, the note was invalid for want of consideration. Is the plaintiff a bona fide holder for value, so as to protect him against the defense of a want of consideration? We answer, no. The consideration paid by him was merely nominal. It is as if the note had been given to him, and he should claim the protection

afforded a bona fide holder for value. It appears on the face of the transaction that it was not a negotiation of the note in the usual course of business, but that the sum exacted on the one side and paid on the other was to give that the semblance of a sale, which otherwise was intended as a mere gift, or, what is worse, a shift to get the note out of the hands of the payee so as to cut off the defense of the maker, for the payee's benefit. Either view is equally fatal to the action of the plaintiff, provided the defense of a want of consideration is established.

Again, the buying of a note against a solvent maker, the purchaser knowing him to be such, for a mere nominal consideration, is very strong, if not conclusive, evidence of mala fides. It is constructive notice of the invalidity of the note in the hands of the seller-such as to put the purchaser upon inquiry, which if he fails to make, he acts at his peril. (Brown v. Taber, 5 Went., 566; Mathews v. Poythress, 4 Ga., 287, 299 et seq., and cases cited; Anderson v. Nicholas, 28 N. Y., 600; Whitbread v. Jordan, 1 Younge & Collyer (Exch.), 303, 328; Jones v. Smith, 1 Hare 68; 1 Parsons on Notes and Bills, 254, 259-60.) The proof offered to show a failure of consideration should have been received, and the case submitted to the jury on this ground.

Judgment reversed, and a new trial awarded.

LIABILITY OF A CORPORATION ON AN ACCOMMODATION

NOTE

MONUMENTAL NATIONAL BANK V. GLOBE WORKS

See under Corporations, page 379

INDORSEMENT BY PARTNERS

ESTABROOK V. SMITH

6 Gray, 570, 66 Am. Dec. 443 (1856)

Action of contract upon a promissory note, made by the defendant, payable to "Estabrook & Richmond or order," and indorsed by Richmond in his own name, for the purpose of transferring his interest therein to his copartner, Estabrook, the plaintiff. The parties submitted to the decision of the court the question, whether this indorsement was sufficient to enable the plaintiff to maintain an action thereon in his own

name.

DEWEY, J. We take the rule to be uncontroverted, that a promissory note payable "to A. B. or order" cannot be transferred, so as to give a right of action in the name of a holder, not the original party,