and assigning the note with power to bring suit on it in the name of the holder who received payment.438 So, it has been held that, where

a stranger pays a note at maturity, it will be presumed to be an extinguishment of the note, and not to carry any right of subrogation to the party paying,439 although he may have declined to have the note canceled. 440 And this is true where the note was surrendered at the time, but not indorsed by the holder, although the party paying, after suit commenced against the makers, procured from the holder a power to bring such suit.*41

§ 1439. A mere volunteer paying a note is not a purchaser, and has no right to be subrogated to the rights of the holder, the circumstances under which he makes the payment being a question of fact for the jury to determine.442 So, a stranger cannot offer payment of a note, and insist upon its surrender to him with the collateral that secures it uncanceled. 443

But if a bill or note is paid by one who is not a party to it, it will be presumed to have been done with the consent of the principal debtor, who should have made payment.*** And where, after taking up a note, such payor receives payment of installments of principal and interest from the maker, it will be presumed that he is a purchaser, and did not pay the note for the maker.445 The intention of a stranger to become a purchaser may be shown by him. *46 And in such a transaction the intention of the parties governs; and although the stranger

438 Hull v. Pitfield, 1 Wils. 46.

439 Especially where the payor was the maker's employer, and the payment was probably made for the maker. Oliver v. Bragg, 15 La. Ann. 402.

440 Burr v. Smith, 21 Barb. (N. Y.) 262.

441 Merrimack Bank v. Parker, 7 Pick. (Mass.) 88.

442 Moran v. Abbey, 58 Cal. 163. And this has been held irrespective of the maker's request and of any agreement with the maker. Binford v. Adams, 104 Ind. 41, 3 N. E. 753.

443 Williams v. Gottschalk, 6 Mo. App. 597. So, where a note was payable "on or before May 1." and the holder refused to sell it, although he took the money offered by a party who was liable for the maker, and claimed the right, saying the interest would stop, and although the money was furnished for investment by a third party. Wells v. Tucker, 57 Vt. 223. 444 Byles, Bills, 225; Cook v. Lister, 32 Law J. C. P. 121.

rebutted. Walter v. James, L. R. 6 Exch. 124.

445 Rand v. Barrett, 66 Iowa, 731, 24 N. W. 530.

446 Byles, Bills, 226, note; 2 Daniel, Neg. Inst. 253.

But this may be

takes up the note for the maker, and at his request, both the note and a collateral mortgage securing it may be kept alive in his hands.447 So, where he is requested by the maker, and also by the indorsers, to take up the note and hold it as his security, and the indorsers authorize the bank to deliver the note to him without erasing their signatures, he can hold it as a purchaser against both maker and indorsers.448 On the other hand, payment by a stranger to a collecting agent at the maker's request has been held to extinguish the note, although it was subsequently transferred by the payee to the party who paid it.*** So, where a stranger pays a note at the request of the maker, after it is due, and it is charged to his account, and sent to him as a voucher, it will amount to a payment as to sureties who did not consent.*5 And if a stranger takes up a bill for an indorser, at his request and without the knowledge of the acceptor, it has been held that he can only recover against the acceptor on the acceptance.**

450

§ 1440. - The payment of a bill by a stranger may be a purchase, although not so understood at the time by the holder, who supposed it to be made on behalf of the acceptor.452 But if money is borrowed from another by the maker, and the note paid with it, it will be a payment and discharge the sureties, although the lender of the money took the note without the knowledge of the holder or sureties.453

Dillon v. Kauffman, 58 Tex. maker the face of the note. 515.

447 Ramsey v. Daniels, 1 Mackey (D. C.) 16; 696. And such payor may recover from the although he paid less. Boyce v. Shiver, 3 S. C. 448 Hartshorn v. Brace, 25 Barb. (N. Y.) 126. And one who is induced to pay a draft by the fraudulent representations of the drawer may sue the drawer as a purchaser. Goldsmid v. Bank, 12 Barb. (N. Y.) 407.

449 Moran v. Abbey, 63 Cal. 56. So, where he is acting as the maker's agent. Johnson v. Glover, 121 Ill. 283, 12 N. E. 257.

450 Coykendall v. Constable, 19 Wkly. Dig. 169.

451 Houle v. Baxter, 3 East, 177. And in this case the acceptance was barred by a discharge in bankruptcy.

452 And the purchaser may sue the drawer upon it, Benj. Chalm. Dig. art. 234; Lyon v. Maxwell, 18 Law T. (N. S.) 28; the purchaser being, in this case, the assignee of the acceptor. But a stranger who pays coupons without the holder's knowledge, to save the credit of the company, cannot set up that it was a purchase as against a subsequent bona fide holder of the bonds. Farmers' Loan & Trust Co. v. Iowa Water Co., 78 Fed. 881.

453 Eastman v. Plumer, 32 N. H. 238. So, where the maker pays the first of several notes secured by a mortgage, and transfers it to the person RAND.C.P.-131 (2081)

the other hand, where a note is taken up with money borrowed by the original lender or holder of the note, it will not discharge another note held with it as collateral.45- Where one advances money at the maker's request to pay a note, under an agreement that he shall hold it, he may bring an action on it as a purchaser against the maker and indorsers. 455

But if a note is given for land, and is secured by a mortgage on the Jaud, and the maker of the note afterwards sells the land subject to the mortgage, it will be satisfied as to the maker if a subsequent mortgagee of the same land purchases it and the mortgage, although he takes an assignment of both.456 So, if notes are secured by a mortgage, and two of them are transferred "without recourse" to A., and by him assigned to B., and taken up afterwards by A., in a subsequent transfer of the mortgaged land to him, to pay for the land, it will be a payment, and not a purchase of the notes.457 So, if a note is paid by one who agreed to pay it as purchaser of the land covered by a collateral mortgage, it will be a payment, and cannot be reissued by the party who paid it, although it was taken and not marked "Paid." and was afterwards transferred by him as collateral to another, the land having been afterwards sold by him to a third party with the representation that the note was paid.458 So, if a note is paid by one who is under an obligation to pay it, e. g. an expressman who had previously received money for that purpose, or if it is paid for him by another at his request, it will give the latter no right of action against the maker. 459

leading him money for the purpose, it is a payment, and not a purchase, and lets in other notes secured by the mortgage as entitled to priority in payment out of the mortgage. Bailey v. Malvin, 53 Iowa, 371, 5 N. W. 515. 454 Smith v. Johnson, 2 Cranch, C. C. 645, Fed. Cas. No. 13,067.

455 Horton v. Manning, 37 Tex. 23. 456 Rolfe v. Wooster, 58 N. H. 526. And see Lemans v. Wiley, 92 Ind. 436, where a widow, holding land through her husband, paid off the note and mortgage for the purchase money, expecting reimbursement from the husband's estate.

457 So held on subsequent foreclosure of the mortgage.

ner, 55 Iowa, 508, 8 N. W. 348.

Gammon v. Kent

458 And the purchaser of the land may set up the payment at suit of the pledgee. Citizens' Bank v. Lay, 80 Va. 436.

459 Willis v. Hobson, 37 Me. 403.

So, if one who has assumed the payment of a note under an agreement with the maker pays it, it will discharge the maker.* 460 And although the agreement was that he should take it up and hold it, it will discharge both the note and a collateral trust deed, where the money was advanced by check to the maker, and deposited by him, and the note paid by his own check.461 So, where money is advanced to the maker to pay notes, on a contract for the purchase of land covered by a collateral mortgage, the payment being made on certain conditions, it is a payment, and not a purchase, although the contract for purchasing the land is afterwards abandoned.462

But where a note secured by a mortgage is taken up by a bank holding it, for a party who had assumed to pay it, and the bank takes the note and mortgage with additional collateral, it is a purchase, and not a payment.463 So, where notes secured by mortgage are taken up by an accepted draft with an express agreement that the acceptor be subrogated to the mortgage.464 So, where a note is paid by the bank where it was payable, by mistake, for a note of the maker's firm, instead of his individual note, and notice of dishonor is given immediately on discovery of the mistake, before the close of banking hours. 46: So, where a bank discounts, and afterwards pays, a note, it will hold it as a bona fide purchaser.466 So, if a bill is accepted for the drawer's accommodation, and, on being sent for collection to the bank, is credited to the holder, the bank will be a purchaser,

460 Ellis v. Allen, 48 Vt. 545. But the payor is entitled to hold the note as evidence and for his own protection. Stiger v. Bent, 111 Ill. 328.

461 Dooley v. Insurance Co., 3 Hughes, 221, Fed. Cas. No. 3,999. 462 Bissell v. Lewis, 56 Iowa, 231, 9 N. W. 177.

463 Swope v. Leffingwell, 72,Mo. 348.

464 Although the holder indorsed, "Received payment as stated." Levy v. Baer, 19 La. Ann. 468.

465 Irving Bank v. Wetherald, 36 N. Y. 335, 34 Barb. (N. Y.) 323. So, where the bank at which the note was payable paid it, and charged it to the maker, whose account was insufficient, it is a purchase, and it may bring its action against the maker, although the note was placed on a canceling fork, as evidence that it was charged, and though it was made for accommodation of an indorser, who was cashier of the bank. Watervliet Bank v. White, 1 Denio (N. Y.) 608. So, where a check drawn on a branch bank at A. is paid by another branch bank at B., and is dishonored on its presentment at A., the bank at B. will hold it as a purchaser. Woodland v. Fear, 7 El. & Bl. 519.

466 Roberts v. Lane, 64 Me. 108.

and can hold the acceptor as such, although the drawer who was accommodated was the president of the bank.467

Place of Payment-As Agent.

So.

§ 1441. Where a depositor makes an acceptance specially payable at a bank, he thereby authorizes the bank to pay the bill.468 But if an acceptance, made payable at a particular bank, is revoked by the acceptor before payment, although after the bank has received the bill and formally canceled the acceptance, the bank may afterwards return it to the holder on the same day, with the acceptance restored as canceled by mistake.469 If a bill or note is made negotiable at a particular bank, it amounts to an authority to the bank to pay it.470 where a note is made payable at a bank, it amounts to a direction from the maker to the bank to pay it.47: In Illinois, however, and in Tennessee, this does not authorize the bank to apply the maker's deposit to the payment without an express direction from him.472 But in Virginia the deposit of an insolvent maker may be applied by the bank to pay such a note.473 Although a general deposit may be so applied, the bank is not required to make such application, but it may

467 Pacific Bank v. Mitchell, 9 Metc. (Mass.) 297.

468 Although his deposit was less than the acceptance, and the acceptance was countermanded after payment. Kymer v. Laurie, 18 Law J. Q. B. 218. But the bank's remedy is confined to an action against such acceptor, and he cannot hold the drawer on his verbal promise to the acceptor to accept a counter draft on himself. Bay City Bank v. Lindsay, 94 Mich. 176, 54 N. W. 42. As to application of deposits in the hands of the holder, where the paper is not expressly so payable, see § 1393, supra.

469 Warwick v. Rogers, 5 Man. & G. 340, 6 Scott N. R. 1.

470 Mandeville v. Bank, 9 Cranch, 9; Knapp v. Cowell, 77 Iowa, 528, 42 N. W. 434; Bedford Bank v. Acoam, 125 Ind. 584, 25 N. E. 713. And see § 125.

supra.

471 Commercial Nat. Bank v. Henninger, 105 Pa. St. 496. And it may hold it against the maker as a purchaser. Union Bank v. Griffin, 4 N. Y. Leg. Obs. 344. And the bank may pay such note, although it had been directed to pay a check (not yet presented) which would have exhausted the maker's deposit. Etna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82. Such note is in effect a check. Indig v. Bank, 80 N. Y. 100.

472 Ridgely Nat. Bank v. Patton, 109 Ill. 479; Wood v. Trust Co., 41 Ill. 267; Grissom v. Bank, 87 Tenn. 350, 10 S. W. 774.

478 Ford's Adm'r v. Thornton, 3 Leigh, 695.