Negotiable paper may be delivered as an "escrow," by which is meant that it shall be held by some one subject to the performance of a certain condition, and then be delivered to the payee. In the case of a deed delivered as an escrow it must be held by a stranger, and not by the grantee if it is to operate as an escrow. And except in New York this rule is held to apply to commercial paper. In the case of Benton v. Martin (52 N. Y. 574), it was stated that negotiable paper might be delivered to the payee subject to a condition, "the observance of which is essential to their validity." And in other cases it is held that a second delivery to the payee or indorsee is not necessary when commercial paper is deposited as an escrow. (Taylor v. Thomas, 13 Kans. 217; 1 Daniel's Negot. Inst., Sec. 68.)

Sec. 773. THE EFFECT OF NOTES AND BILLS EXECUTED IN BLANK.-It is not unusual for a person wishing to secure a loan on his note or bill to obtain the signature of persons as accommodation makers to sign the bill or note in blank, or to affix their signature to a blank paper with authority to fill up the blank as a bill or note in a certain amount. Such instruments are held to be binding upon the parties who only void as to those parties who take it with knowledge of the illegality. An indorsee for value, and without notice of its delivery on Sunday, will take a negotiable paper free from the defense of illegality." (Tiedeman, Com. Paper, Sec. 34c; Pope v. Linn, 50 Me. 84; Cranson v. Goss, 107 Mass. 439; Ball v. Powers, 62 Ga. 757. Contra, Parker v. Pitts, 73 Ind. 598.) In Ohio, commercial paper is valid though executed on Sunday. (Bloom v. Richards, 2 Ohio St. 387.)

have signed them, and to constitute a general letter of credit to any person who takes it without knowledge of limitations or conditions imposed, and pays value for it. In the absence of knowledge of the limitation of his authority the party to whom such a paper is entrusted is presumed to have implied authority to fill up the blanks and perfect the instrument, and the parties who have so signed are bound though the paper is executed for a greater amount than was intended.*

Sec. 774. WORDS SUFFICIENT TO CONSTITUTE THE PROMISE.-It is not necessary that the words expressing the obligation to pay be confined to any particular form or expression. Thus a promise to "deliver," to be "accountable," to be "responsible," and the like, have been held sufficient promises to pay the amount stated in the note. And where the expression used was "Borrowed of A. B. fifty dollars, which I agree never to pay him, or order," it was held that the word "never" should be rejected as surplusage, and the amount be deemed payable on demand. And the expressions, "I have agreed to pay," "I acknowledge to owe," "I am content to pay," and the like, have been held sufficient in a bond.†

*Pittsburg v. Neal, 22 How. 107; Bank v. Smith et al., 5 Ohio 222; Schryver v. Hankes, 22 Ohio St. 308; White v. Vermont, etc., R. R. Co., 21 How. 575. But by the weight of authority an agent cannot by parol authority thus fill up blanks in a bond or deed under seal and must have authority under seal to do so, or the delivery must be made by the maker himself. (Tiedeman, Com. Paper, Sec. 35.)

+Swan's Treatise, 15th ed., p. 696.

In a bill of exchange the words used must create a distinct and certain obligation to pay the amount mentioned, but the expression "please pay" used in a bill directed to the drawee is considered a mere civility and does not destroy the effect of the order or command to the drawee. But a supplicatory request to another, the granting of which is a favor and not a right, does not constitute a bill of exchange, unless the words of command are indicated by the use of words of negotiability.* The expression "pay" in a note or bill, may be replaced by the equivalent expression "deliver," "credit in cash," and the like. (Morris v. Lee, 2 Ld. Raym. 1396.) In a note the certain promise to pay may be indicated by any series of words that constitute a promise, and in a number of States a due bill, or acknowledgment of an existing indebtedness is held to be a promissory note, and especially when followed by words of negotiability.t

*Tiedeman, Com. Paper, Sec. 23; Little v. Slackford, 1 M. & M. 371; Ruff v. Webb, 1 Esp. R. 129.

†Brady v. Chandler, 31 Mo. 28; Carver v. Hayes, 47 Me. 257; Smith v. Allen, 5 Day 337. But the contrary doctrine in regard to due bills, or "I. O. U.s" is held in England and some of the States, they being considered insufficient as promissory notes. (Fesenmayer v. Adcock, 16 M. & W. 449; Currier v. Lockwood, 40 Conn. 348.)

CHAPTER III.

THE PARTIES.

Sec. 775. IN GENERAL.-Negotiable contracts, in general, are governed by the same rules which apply to all contracts as regards the capacity of the parties to enter into the contract or assume the obligation. Hence we shall merely observe at this time that infants, insane persons, married women, under the rules of the common law, and alien enemies are, as a rule, incapable or making, accepting, or indorsing a bill or note; and paper executed by such persons is either void or voidable. But, on the other hand, it is not only competent individuals who may become parties to commercial paper. Negotiable instruments may be executed and transferred by a firm or partnership, by public and private corporations, and by one person acting for another as an agent.* Sec. 776. COMMERCIAL PAPER OF AN INFANT CONSIDERED.-An infant's contracts are now generally regarded as voidable rather than void, and except in the case of necessaries, the infant may disaffirm any contract into which he has entered.† While this is true of most of the contracts entered into by an

*See Vol. 4, Cyclopedia of Law, Secs. 452-458. †See Vol. 3, Cyclopedia of Law, Sec. 878.

infant, it is quite generally held in the case of negotiable paper made, accepted or indorsed by an infant, that the instrument is not only voidable but absolutely void. (Conn v. Coburn, 7 N. H. 368; Morton v. Steward, 5 Ill. App. 533.) Other authorities maintain that while the note or bill made by an infant is not negotiable so as to preclude inquiries when in the hands of a bona fide holder, the holder of such paper is subrogated to the rights of the original payee, and may recover in the name of the payee the original consideration for the paper. (Tiedeman, Com. Paper, Sec. 48.) When the instrument has been given for necessaries for the infant, the holder is entitled to recover the value of the articles supplied.

A note or bill made payable to an infant is valid, and may be enforced by the infant against the maker or acceptor, since the privilege of avoiding the contract lies with, and is for the benefit of the infant. But payment to the infant payee will not protect the payor unless made through the infant's guardian. (Phillips v. Paget, 2 Ark. 80.) If the infant payee indorse the note or bill, the maker or acceptor is bound to pay the indorsee, as the drawing of the paper payable to an infant estops them from denying his capacity to indorse the paper. The infant, however, not being bound by his indorsement may choose to disaffirm it, and by returning the consideration received, compel the maker or acceptor to pay him, although the money has already been paid to the indorsee; or the infant may disaffirm the indorsement, notify all the parties, and if payment