name the note with blank date was given.1** And it is said that this authority extends even to antedating a note, so far at least as to make it valid in the hands of a bona fide holder,145 but not where the holder has notice of its being antedated.146 It is to be observed, moreover, that, inasmuch as a note or bill is complete without any date, the absence of a date, even though a blank has been apparently left for it, is not conclusive, but only prima facie, evidence of author. ity to the holder to insert a date. Whether there be such authority

is a question for the jury.147

Delivery Shown by Date-Parol Evidence.

§ 77. Like other contracts, a note or bill takes effect only upon its delivery for that purpose.148 The time of delivery is in all cases a

Maxwell v. Vansant, 46 Ill. 58. As to filling a blank date in a deed, see Whiting v. Daniel, 1 Hen. & M. 390, where the act was held to be an alteration, but immaterial.

144 Usher v. Dauncey, 4 Camp. 97. But it has been held that a blank date cannot be filled after the death of the drawer. worth, 30 Vt. 11.

Michigan Ins. Co. v. Leaven

145 Page v. Morrell, 3 Abb. Dec. (N. Y.) 433, *42 N. Y. 117.

146 1 Pars. Notes & B. 115; Emmons v. Meeker, 55 Ind. 321; Goodman v. Simonds, 19 Mo. 106.

147 2 Pars. Notes & B. 552, 565; Stout v. Cloud, 5 Litt. (Ky.) 205; Inglish v. Breneman, 5 Ark. 382, 9 Ark. 122. The authority of this latter case was denied, however, in Page v. Morrell, *42 N. Y. 117.

148 1 Daniel, Neg. Inst. 74; 1 Pars. Notes & B. 49; Story, Prom. Notes, § 56, note 4; 1 Edw. Bills & N. § 171; Cox v. Troy, 5 Barn. & Ald. 474; Abrey v. Crux, L. R. 5 C. P. 42; Ex parte Hayward, 6 Ch. App. 546; Marvin v. MeCullum, 20 Johns. (N. Y.) 288; Powell v. Waters, 8 Cow. (N. Y.) 669; Chamberlain v. Hopps, 8 Vt. 94; Woodford v. Dorwin, 3 Vt. 82; Clough v. Davis, 9 N. H. 500; Flanagan v. Meyer, 41 Ala. 132; Hill v. Dunham, 7 Gray (Mass.) 543; Hilton v. Houghton, 35 Me. 143; Smith v. Foster, 41 N. H. 215; Pierce v. Richardson, 37 N. H. 306; Fritsch v. Heislen, 40 Mo. 555; King v. Fleming, 72 Ill. 21. So, in the language of Kent, C. J.: "If they had been previously drawn, they had no force while in the possession and under the control of the maker. To all legal purposes, the notes are to be considered as made or drawn when they were delivered." Lansing v. Gaine, 2 Johns. (N. Y.) 303. It follows that a note dated before, and delivered after, a statute rendering it illegal, is controlled by the statute. Bayley v. Taber, 5 Mass. 286. Where the instrument is not dated, it may be shown by parol that it was to take effect on some other day than that of its delivery, if it contains no express

question of fact for the jury.149 Date and delivery are often spoken of as one thing. For instance, a reference to date in an instrument having no expressed date, can only refer, in general, to the time of its delivery.150 If the delivery is subsequent to its date, it goes into effect upon delivery.151 But its construction, at least in computing the time it shall run, is determined by the date expressed, and not by the time of delivery.152 Where, on the other hand, a note is made payable so many days from date, and no date is expressed, it falls due so many days from its delivery, and parol evidence is admissible to show when that was.153 If the time of delivery cannot be ascertained, the time when its legal existence can first be proved will be taken to be the time of its date or delivery.15

154

provision as to this point. Davis v. Jones, 17 C. B. 625. But, if a note payable six months after date is not delivered until end of the six months, it will be construed as it reads, and be, in effect, a demand note. Almich v. Downey, 45 Minn. 460, 48 N. W. 197.

149 Hill v. Dunham, 7 Gray (Mass.) 543.

150 Chit. Bills, 171; Byles, Bills, 79; De la Courtier v. Bellamy, 2 Show. 422; Hague v. French, 3 Bost. & P. 173; Giles v. Bourne, 6 Maule & S. 73; Armitt v. Breame, 2 Ld. Raym. 1076, in construction of an award. So, in construction of a covenant, "when there is no date, or an impossible date, that word must mean delivery." Bayley, J., in Styles v. Wardle, 4 Barn. & C. 908. See, too, Seldonridge v. Connable, 32 Ind. 375.

151 If a partnership note be delivered after the dissolution of the firm, although drawn and dated before, it cannot relate back, so as to bind a partner having no share in making or delivering it. Woodford v. Dorwin, 3 Vt. 82. The same principle applies where between date and delivery a statute is passed prohibiting such instrument. Bayley v. Taber, 5 Mass. 286. 1521 Edw. Bills & N. § 171; 1 Pars. Notes & B. 49; Powell v. Waters, 8 Cow. (N. Y.) 669; Luce v. Shoff, 70 Ind. 152. So, where a note was made payable six months after date, and postdated one year. Bumpass v. Timms, 3 Sneed (Tenn.) 459.

153 Richardson v. Ellett, 10 Tex. 190. To the same effect as to parol evidence, see Byles, Bills, 123; Story, Bills, § 37; Davis v. Jones, 25 Law J. C. P. 91; Id., 17 C. B. 625; Giles v. Bourne, 6 Maule & S. 73. In like manner the real date of an undated acceptance may be shown by parol. Kenner v. Creditors, 10 Mart. (La.) 17. But an indorser, whose indorsement bears no date, cannot set up that it was made on Sunday, and therefore not binding upon him, in defense to an action brought by a subsequent accommodation indorser without notice. Greathead v. Walton, 40 Conn. 226.

1541 Pars. Notes & B. 387; Story, Prom. Notes, § 45. In Mahier v. Le Blanc, 12 La. Ann. 207, a draft, with a date, but by Louisiana law undated

Where there is a date expressed in the instrument, this is prima facie evidence of the time of its delivery.155 But bank notes, which are frequently reissued, are an exception to this rule.156 The court will take notice of the day of the week on which a given date falls.157 The date of a note is also prima facie the date of an undated indorsement.158 On the other hand, where an impossible date (e. g. Sep

because not formally executed before a notary, but sous seing prive, was held insufficient to support a judgment rendered on it before the date of protest; that date being considered the first legal evidence of its existence.

155 Byles, Bills, 79; Chit. Bills, 171; 1 Edw. Bills & N. § 174; 1 Pars. Notes & B. 41, 49; Benj. Chalm. Dig. Bills & N. 17; Roberts v. Bethell, 12 C. B. 778; Anderson v. Weston, 6 Bing. N. C. 296; Id., 8 Scott, 583; Taylor v. Kinloch, 1 Starkie, 175; Obbard v. Betham, 1 Moody & M. 486; Smith v. Battens, 1 Moody & R. 341; Cowing v. Altman, 71 N. Y. 435, reversing 5 Hun (N. Y.) 556; Sayre v. Wheeler, 31 Iowa, 112; Emery v. Vinall, 26 Me. 295; Knisely v. Sampson, 100 Ill. 574. But see Cowie v. Harris, 1 Moody & M. 141, and Rose v. Rowcroft, 4 Camp. 245, overruling this doctrine as to third persons, so far as commercial paper is concerned. And this presumption does not extend to the bill of a bankrupt, to prove the date of his debt, under the English bankruptcy act. Anderson v. Weston, supra. Between parties, however, this principle is so far true, that where a note bore date on Thursday, and there was evidence of its being signed on Sunday, but no evidence as to the time of its delivery, the presumption of validity arising out of its date sustained it as a valid instrument. Dohoney v. Dohoney, 7 Bush (Ky.) 217. As Sunday, by the statute of Massachusetts, extends only from midnight to sunset, a note dated on Sunday is not necessarily made within the hours of the legal Sunday; nor, it seems, is there a presumption to that effect. Hill v. Dunham, 7 Gray (Mass.) 543; Nason v. Dinsmore, 34 Me. 391. And see Ray v. Catlett, 12 B. Mon. (Ky.) 532, as to the particularity required in Kentucky in pleading that a note was executed and delivered on Sunday. As to presumption in favor of sustaining instrument where the very hour is important, see Knisely v. Sampson, supra.

156 Wright v. Douglass, 3 Barb. (N. Y.) 554; Farmers' & Mechanics' Bank v. White, 2 Sneed (Tenn.) 482; Greer v. Perkins, 5 Humph. (Tenn.) 588; Long v. Bank, 81 N. C. 41. And it may be shown to have been issued later. Selfridge v. Bank, 8 Watts & S. (Pa.) 320.

157 Chrisman v. Tuttle, 59 Ind. 155. So, as to the calendar in general, Reed v. Wilson, 41 N. J. Law, 29. But see Hill v. Dunham, 7 Gray (Mass.) 543, in which case it was left for the jury to determine whether a note was made before or after sunset, that being the end of the statutory Sunday.

158 Burnham v. Webster, 19 Me. 232; Dodd v. Doty, 98 Ill. 393. If, however, the indorsement was actually made afterwards, this presumption will not make it relate back to the date of the note. Broun v. Hull, 33 Grat. (Va.)

tember 31st) is expressed, the last day of the month is assumed to be the date intended.159 But, where a bill of exchange was dated on Sunday, it was held, in favor of an undated acceptance, that there was no presumption of the acceptance having been made on that day.100 And the date is in no case conclusive upon the immediate parties, but delivery may be shown to have been made upon some other day.161 Where a firm note, dated before, was given after, dissolution of the partnership, that fact may be shown in defense by the outgoing partner.162

Mistake in Date.

§ 78. It is also true that a mistake of date may be shown between immediate parties.163 So, it may be shown that an instrument dated on Sunday was really delivered on another day, and therefore valid; 164 and in like manner that an instrument was really executed

23. In like manner the date of an indorsement of payment is prima facie evidence of the time of such payment. Clapp v. Hale, 112 Mass. 368; Carter v. Carter, 44 Mo. 195. But see, contra, Shaffer v. Shaffer, 41 Pa. St. 51. And in general the date of the note is prima facie evidence of the time of accrual of the debt. Milliken v. Whitehouse, 49 Me. 527.

159 1 Pars. Notes & B. 409, citing Wagner v. Kenner, 2 Rob. (La.) 120. But see Styles v. Wardle, 4 Barn. & C. 908.

100 Begbie v. Levi, 1 Cromp. & J. 180.

1611 Pars. Notes & B. 41; 2 Pars. Notes & B. 514; Cowing v. Altman, 71 N. Y. 435, reversing 5 Hun (N. Y.) 556; Breck v. Cole, 4 Sandf. (N. Y.) 80; Aldridge v. Bank, 17 Ala. 45; Drake v. Rogers, 32 Me. 524; Dean v. De Lezardi, 24 Miss. 424; Paige v. Carter, 64 Cal. 489, 2 Pac. 260.

162 Woodford v. Dorwin, 3 Vt. 82.

163 Buck v. Steffey, 65 Ind. 58; McSparran v. Neeley, 91 Pa. St. 17; Germania Bank of City of New York v. Distler, 4 Hun (N. Y.) 633; Drake v. Rogers, 32 Me. 524; Biggs v. Piper, 86 Tenn. 589, 8 S. W. 851. Although such correction will alter the time for maturity of the note. Drake v. Rogers, supra. So, a mistaken date may be corrected, in aid of a subsequent bona fide holder. Almich v. Downey, 45 Minn. 460, 48 N. W. 197.

164 Clough v. Davis. 9 N. H. 500; Lovejoy v. Whipple, 18 Vt. 379; Goss v. Whitney, 24 Vt. 187; Aldridge v. Bank, 17 Ala. 45; Drake v. Rogers, 32 Me. 524; Marshall v. Russell, 44 N. H. 509; Stacy v. Kemp, 97 Mass. 166; Hilton v. Houghton, 35 Me. 143; King v. Fleming, 72 Ill. 21; Smith v. Bean, 15 N. H. 577. And in like manner it may be shown that a note executed on Sunday was not delivered until Wednesday. Fritsch v. Heislen, 40 Mo. 455; King v. Fleming, supra. And, where the presumption of an indorsement on

165

on Sunday and illegal, although dated on Monday.1 An erroneous date may be corrected by a memorandum on the back or margin of the instrument, e. g. a memorandum showing that the year 1855 was intended instead of 1854.1 166

167

But parol evidence is not admissible to prove a mistake in date in a suit brought by an innocent purchaser and to his disadvantage.1 Thus, a note dated on Monday is good in the hands of a bona fide holder, although really executed and delivered on Sunday, and the illegal delivery cannot be proved against such holder.168 It may, however, be shown, even against such holder, that the note was antedated, where this was done for the purpose of fraudulently evading a statute prohibiting such a note.169 Parol evidence is also admissible to correct a misdescription of date, e. g. where a mortgage se

Sunday arose from a delivery on that day of a note dated on Monday, the indorsement may be proved to have been made on another day, in order to follow out the Arkansas rule of favorable construction of assignments. Trieber v. Bank, 31 Ark. 128. "All blank assignments shall be taken to have been made on such day as shall be of most advantage to the defendant." Gantt's Dig. Ark. § 570.

165 Bank of Cumberland v. Mayberry, 48 Me. 198; Allen v. Deming, 14 N. H. 133.

166 Byles, Bills, 101; Fitch v. Jones, 5 El. & Bl. 238; Hurl. & N. 1. See, too, Brutt v. Picard, Ryan & M. 37; Barb. (N. Y.) 501.

Fanshawe v. Peet, 2 Van Brunt v. Eoff, 35

167 1 Daniel, Neg. Inst. 93; 1 Pars. Notes & B. 388; Huston v. Young, 33 Me. 85; the maker of a note dated in 1847, and payable in two years from date, not being permitted to prove, at suit of a bona fide holder, that the note was actually made in 1848, and therefore not yet due. Nor can the maker of a note dated at Boston show, against a bona fide holder for value, that it was really made in New York, and therefore void for usury. Towne v. Rice, 122 Mass. 67.

168 Clinton Nat. Bank v. Graves, 48 Iowa, 228; Cranson v. Goss, 107 Mass. 439; Greathead v. Walton, 40 Conn. 226; Bank of Cumberland v. Mayberry, 48 Me. 198; State Capitol Bank v. Thompson, 42 N. H. 369; Knox v. Clifford, 38 Wis. 651; Vinton v. Peck, 14 Mich. 287; Ball v. Powers, 62 Ga. 757. And, a fortiori, where it was dated and delivered on Monday, and only signed on Sunday. King v. Fleming, 72 Ill. 21. But, to entitle the holder to recovery in such case, the burden of proof of good faith lies on him. Allen v. Deming, 14 N. H. 133.

169 Bayley v. Taber, 5 Mass. 286.