Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1873-04-23
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OF the makers, equities, and imports abso,
lutte verify, as 20 him, could have beer
within the contemplation of the law. Thi:
consideration is greatly lessened by the fac
that even in relation to such paper, owing
to its frequent issue without the
makers authority, and In other
instances, there fare numerous de-
fences. In actual commercial
history greater number Of eases occur, in
which negotiable paper Is put In circulation
under circumstances which enable the
maker to defend for want of authority to
issue it, than there are of failures of con-
sideration. Few cases of the latter eharac-
ter arise in ordinary mercantile sales and
bank discounts, and practically In nine
hundred and ninety-nine cases out of
thousand, the feature Of negotiability would
make no difference. If the paper is forged,
Of course it does not bind the apparent
maker. If, by statute, an usurjous or 9TH
erwise illegal note is declared to be void,
bona tide holders must submit 20 the de-
tense. And so of some other illegalities, as
distinguished from fraudulent defects in the
consideration. Duress would avoid note
in subsequent hands. Infants, non COM
pos, and all those not competent to contract
may defend. All agents must be author-
lied, or the paper is not obliga-
tory, and manifold successful objections
are prosecuted in support Of such
defense. II is in degree oaly, aud not in
essential nature that a negotiable differs
from non-negotiaole note. We do not
think the difference so wide as to bring one
within and exclude the other from the law,
where by universal usage Si the place where
issued or negotiated both are actually &C
cepted and treated as commercial paper.
It is evident in this case, no. such broad
ground as has been ASSUMED is necessary
TO sustain our Judgment, as the note up
on which the present petition is based is by
the general principles of the commercial
law negotiable and it may well be held %
be commercial paper within the statute,
even if a sealed or clearly non-negotiable
instrument would not be.
We have read several judgments opposed
70 this opinion, and find nOne 10 support it.
In 8 B. r. As, in re Heimsheimer, Judge
Mcdonald assumes negotiability TO be nee
sssary. Judge Whitney in B. x. 90, In
e Nickodemus, refers to the law of Mich
;an making promiSsory DOtes assignab e as
me of the reasons why they were Within
he law. In the sane volume SO, in re
deDermott Manufacturing Company,
Judge B.stchf5rd holds that non-neg9tia-
lie note is not negotiable paper within the |
lct. In the same volume 50, in re Hollis, |
Judge Lowell, in a case where the point !
lid not arise, seems to coDcede such is the
aw. Some of these cases hold thai an ac-
ommodation note is not within the stat
tie Others that the consideration NAV be
inquired into, and if net shown to be con-
eeted with the trade or calling of the max |
r, the note is not within the statute. Other |
istinctions are taken to exclude from the |
perat;ols of this act paper openly passing |
} the market as commercial. We do not |
link so narrow reading is justified by its
road and national object, and by the buzz
ess conditions in reference to which it was
nacted.
The decree below IL reversed, aid the
suse RENTED with directions TO sustain
le petition.