er, or to any subsequent indorser who may be compelled to pay it. The check must be presented within a reasonable time after his indorsement (or, in states which have enacted the Negotiable Instruments Law, after the last negotiation of the check), or the indorser will be discharged from liability thereon whether he has suffered loss by the delay or not. What is a reasonable time after the indorsement (or last negotiation) is determined by the rules which determine what is a reasonable time after its issue within which to present a check in order to charge the drawer. Such indorser also makes the same warranties as such indorser of other negotiable instruments.

36. HOLDER IN DUE COURSE-A holder in due course -that is, one who has taken a check by negotiation in good faith and for value, before it was overdue, and without notice that it had been previously dishonored, or of any infirmity in the instrument or defect in the title of the person negotiating it— holds the check free from any such defect and free from personal defenses available to prior parties among themselves, and may enforce payment against all parties liable thereon. A check is deemed overdue if negotiated an unreasonable time after its issue. What is an unreasonable time for this purpose is a question of fact, depending upon the special circumstances of each case.

In General

A check, if payable to order or to bearer, is a negotiable instrument; 11 and, like other negotiable instruments, it is ne

114 Keene v. Beard, 8 C. B. (N. S.) 372; Barbour v. Bayon, 5 La. Ann. 304, 52 Am. Dec. 593; Bill v. Stewart, 156 Mass. 308, 31 N. E. 386; Symonds v. Riley, 188 Mass. 470, 74 N. E. 926; Gates City Building & Loan Ass'n v. National Bank of Commerce, 126 Mo. 82, 28

gotiated by indorsement or delivery, according as it is payable to order or to bearer. The rights of the transferee of a check by negotiation do not differ from those of a transferee of a demand bill of exchange, except in so far as different rules prevail in respect to his duty to make presentment and to give notice of dishonor in order to charge the drawer,115 in respect to the time after the indorsement within which presentment must be made in order to charge indorsers,118 and in respect to the time after the issue of the check when it will be deemed overdue, so as to charge the transferee with notice of defense.117

Liability of Indorser

A check, like any other negotiable instrument, may be indorsed, not merely so as to transfer it, but so as to impose upon the indorser the ordinary liabilities which flow from the indorsement of a negotiable instrument. This is so, even if the check be payable to bearer and transferable by mere delivery, if the holder desires thereby to give to the transferee the added security of his name and liability on the instrument. It follows that the indorser of a check who indorses without qualification engages to pay the amount thereof to the holder, if upon due presentment it be dishonored and the necessary proceedings on dishonor be duly taken.118

The indorser also by his indorsement impliedly makes the usual warranties that arise from such an indorsement of other negotiable instruments; that is, as declared by the Negotiable Instruments Law,119 he warrants to all subsequent holders in

S. W. 633, 27 L. R. A. 401, 47 Am. St. Rep. 633. See "Bills and Notes," Dec. Dig. (Key No.) § 149; Cent. Dig. § 373.

116 Post, p. 122.

117 Post, p. 126.

115 Ante, p. 107. 118 Keene v. Beard, 8 C. B. (N. S.) 372; Negotiable Instruments Law, § 65. See "Bills and Notes," Dec. Dig. (Key No.) § 280; Cent. Dig. §§ 622-637.

119 Negotiable Instruments Law, § 66.

As to warranties of indorser without recourse and of transferror by delivery, see section 65.

due course that (1) the check is genuine; 120 (2) that he has good title to it; 121 (3) that all prior parties had capacity to contract; and (4) that it is valid and subsisting.122 A socalled indorsement which is made upon payment by the drawee is to be distinguished from an indorsement in its technical sense. The effect of such an indorsement will be considered later.123

Presentment and Notice of Dishonor

The liability of the drawer of a check differs from that of the drawer of a bill of exchange, in that he is not discharged by delay in presentment or in giving notice of dishonor unless he was prejudiced thereby.124 The liability of the indorser of a check, however, does not differ in this respect from that of the indorser of a demand bill of exchange. A check, being payable on demand, must, in order to charge an indorser, be presented for payment within a reasonable time, and unless so presented, and notice of dishonor be given, he is discharged, irrespective of any resulting loss to the indorser.125

120 Warren-Sharf Asphalt Pav. Co. v. Commercial Nat. Bank, 97 Fed. 181, 38 C. C. A. 108; Turnbull v. Bowyer, 40 N. Y. 456, 100 Am. Dec. 523. See "Bills and Notes," Dec. Dig. (Key No.) § 296; Cent. Dig. 88 667-679.

121 Wellington Nat. Bank v. Robbins, 71 Kan. 748, 81 Pac. 487, 114 Am. St. Rep. 523; Lieber v. Fourth Nat. Bank of St. Louis, 137 Mo. App. 158, 117 S. W. 672. See "Bills and Notes," Dec. Dig. (Key No.) § 296; Cent. Dig. §§ 667-679.

122 Birmingham Nat. Bank v. Bradley, 103 Ala. 109, 15 South. 440, 49 Am. St. Rep. 17. See "Bills and Notes," Dec. Dig. (Key No.) § 296; Cent. Dig. §§ 667-679.

123 Post, p. 163.

124 Ante, p. 107.

125 Comer v. Dufour, 95 Ga. 376, 22 S. E. 543, 30 L. R. A. 300, 51 Am. St. Rep. 89; Travers v. T. M. Sinclair & Co., 122 Ill. App. 203; Northwestern Coal Co. v. Bowman, 69 Iowa, 150, 28 N. W. 497 (cf. Fritz v. Kennedy, 119 Iowa, 628, 93 N. W. 603); First Nat. Bank of Detroit v. Currie, 147 Mich. 72, 110 N. W. 499, 9 L. R. A. (N. S.) 698, 118 Am. St. Rep. 537; Parker v. Reddick, 65 Miss. 242, 3 South. 575, 7 Am. St. Rep. 646; First Nat. Bank of Wymore v. Miller, 37 Neb. 500, 55 N. W. 1064, 40 Am. St. Rep. 499 (but see State Bank of Goth

In determining what is a reasonable time within which to present a check, so as to charge an indorser, the same rules prevail as those which determine the time with respect to the drawer; that is, as has already been more fully stated,126 in the absence of special circumstances, where the indorsee and the bank are in the same place, the check must be presented not later than the day after it has been received; 127 and where the indorsee and the bank are in different places the check must be forwarded, not later than the next day after the check has been received, to the place where the bank is located, and there presented not later than the day after its receipt at that place, 128 An ordinary check is intended for payment, and not for indefinite circulation, from which it follows on principle that the time for presentment, as against an indorser, runs from the time of delivery of the check to the indorsee, and such is the rule where it has not been changed by statute.

129 A dif

enburg v. Carroll, 81 Neb. 484, 116 N. W. 276); Smith v. Janes, 20 Wend. (N. Y.) 192, 32 Am. Dec. 527; Cuminsky v. Kleiner, 34 Misc. Rep. 181, 68 N. Y. Supp. 776; Start v. Tupper, 81 Vt. 19, 69 Atl. 151, 15 L. R. A. (N. S.) 213, 130 Am. St. Rep. 1015; Kirkpatrick v. Puryear, 93 Tenn. 409, 28 S. W. 1130, 22 L. R. A. 785. See "Bills and Notes," Dec. Dig. (Key No.) §§ 404, 407; Cent. Dig. §§ 1091-1103, 1110-1112.

126 Ante, p. 109.

127 Brown v. Schintz, 202 Ill. 509, 67 N. E. 172; First Nat. Bank of Detroit v. Currie, 147 Mich. 72, 110 N. W. 499, 9 L. R. A. (N. S.) 698, 118 Am. St. Rep. 537. See "Bills and Notes," Dec. Dig. (Key No.) $ 404; Cent. Dig. §§ 1091-1103.

128 Northwestern Coal Co. v. Bowman, 69 Iowa, 150, 28 N. W. 496; Aebi v. Bank of Evansville, 124 Wis. 73, 102 N. W. 329, 68 L. R. A. 964, 109 Am. St. Rep. 925; Parker v. Reddick, 65 Miss. 242, 3 South. 375, 7 Am. St. Rep. 646; Gifford v. Hardell, 88 Wis. 538, 60 N. W. 1064, 43 Am. St. Rep. 925. See "Bills and Notes," Dec. Dig. (Key No.) $404; Cent. Dig. §§ 1091–1103.

129 Northwestern Coal Co. v. Bowman, 69 Iowa, 150, 28 N. W. 496 (cf. Plover Savings Bank v. Moodie, 135 Iowa, 685, 110 N. W. 29; post, note 132); First Nat. Bank of Detroit v. Currie, 147 Mich. 72, 110 N. W. 499, 9 L. R. A. (N. S.) 698, 118 Am. St. Rep. 537; Gifford v. Hardell, 88 Wis. 538, 60 N. W. 1064, 43 Am. St. Rep. 925 (cf. Co

ferent rule, however, appears to be established by the Negotiable Instruments Law, which provides that "where the instrument * is payable on demand, presentment must be made within a reasonable time after its issue, except that in the case of a bill of exchange, presentment for payment will be sufficient if it be made within a reasonable time after the last negotiation thereof." 130 It is to be borne in mind that the rule here made applicable to a bill of exchange applies to a check.131 It has been held accordingly, under the Negotiable Instruments Law, that in determining what is a reasonable time within which to present a check in order to charge the indorsers, only the time between the last negotiation and the presentment need be considered.1 132 The effect of this appears to be to continue the liability of an indorser of a check for an indefinite time, limited only by the statute of limitations, provided that the check is presented for payment within a reasonable time after its last negotiation, no matter how long this may be after the drawing or indorsement.133 The circumstances which will excuse the holder of a check for failure to present it,134

or for

lumbian Banking Co. v. Bowen, 134 Wis. 218, 114 N. W. 451; post, note 132). See "Bills and Notes," Dec. Dig. (Key No.) § 404; Cent. Dig. $$ 1091–1103.

130 Negotiable Instruments Law, § 71.

131 Negotiable Instruments Law, § 185.

132 Columbian Banking Co. v. Bowen, 134 Wis. 218, 114 N. W. 451 (bank check). See, also, Plover Savings Bank v. Moodie, 135 Iowa, 685, 110 N. W. 29, 113 N. W. 476. Cf. Gordon v. Levine, 197 Mass. 263, 83 N. E. 861, 15 L. R. A. (N. S.) 243, 125 Am. St. Rep. 361. See "Bills and Notes," Dec. Dig. (Key No.) § 404; Cent. Dig. §§ 10911103.

133 This unfortunate result, observes Professor Brannan, might have been avoided by adopting the corresponding provision of the English Bills of Exchange Act, under which the drawer of a bill payable on demand is discharged unless presentment be made within a reasonable time after its issue, and the indorser unless it is presented within a reasonable time after his indorsement. Brannan, Neg. Inst. Law, p. 224.

134 See Negotiable Instruments Law, §§ 80, 82.