mand within any particular time. Merritt v. Todd, 23 N. Y. 28; Pardee v. Fish, 60 N. Y. 265; Herrick v. Wolverton, 41 N. Y. 581; Wheeler v. Warner, 47 N. Y. 519; Crim v. Starkweather, 88 N. Y. 339; Parker v. Stroud, 98 N. Y. 379, 385; Shutts v. Fingar, 100 N. Y. 541. The object intended to be accomplished by the statute was to do away with the distinction between notes, or bills, payable on demand, which Merritt v. Todd had created, and to leave the question of their reasonable presentment for payment, in order to charge the parties to them, as one for the determination of the court upon the facts. Commercial Nat. Bank v. Zimmerman, 185 N. Y. 310. In Connecticut, prior to the Negotiable Instruments Law, promissory notes payable on demand were required to be presented within four months. Connecticut General Statutes, p. 405. But the later statute restores the rule of the common law as it formerly existed in that State. Hampton v. Miller, 78 Conn. 267, 271-272. A similar rule exists in California (Civil Code, section 3248), and in Minnesota (Minnesota statutes [1891], section 2104). In Vermont demand notes are overdue in sixty days. Paine v. Central Vermont R. R. Co., 118 U. S. 152. And this was formerly the rule in Massachusetts. (Id.) As to a note payable on demand, "with interest semiannually," see Hayes v. Werner, 45 Conn. 252.

One of the most difficult questions presented for the decision of a court is, what shall be deemed a reasonable time within which to demand payment of the maker of a note payable on demand, in order to charge the indorser. It depends upon so many circumstances to determine what is a reasonable time in a particular case, that one decision goes but little way in establishing a precedent for another. Seavor v. Lincoln, 21 Pick. 267. If the facts are disputed and the testimony conflicting, the question is a mixed one of law and fact, to be decided by the jury, under the instructions of the court, but where the facts are not in dispute the question is one of law. Commercial Nat. Bank v. Zimmerman, 185 N. Y. 310; German Am. Bank v. Mills, 99 App. Div. (N. Y.) 312; Guild v. Goldsmith, 9 Fla. 212.

As by section 26 an instrument negotiated when overdue is payable on demand, the requirement of section 131 is applicable in such cases. In theory paper indorsed when overdue is equivalent to a bill of exchange drawn on the party primarily liable, payable at sight. In this theory the necessity of demand

and notice is an essential element; not notice on a given day, as in the case of a maturing note, possible in that case, but impossible in the other, for the day appointed by the former maker and the new acceptor has passed; but notice after the holder has had reasonable time to make the demand on the maker, and has employed that time with diligence. Tyler v Young, 30 Pa. St. 143, 144; Leidy v. Tammany, 9 Watts, 353; Guild v. Goldsmith, 9 Fla. 212. In the case of a negotiable certificate of deposit there is much reason for saying that the parties do not contemplate an immediate demand of payment, and hence an indorsee may not be held to the same degree of diligence in presenting it for payment as the law requires in other cases. Lindsel v. McClellan, 18 Wis. 481. A note, presented in accordance with the request or assent of the indorser, is, as to him, presented in a reasonable time. Oley v. Miller, 74 Conn. 304, 308. A note payable "on demand after date" is a demand note, and not one payable on a fixed day, and hence, it need only be presented for payment within a reasonable time. Schlesinger v. Schultz, 110 App. Div. (N. Y.) 356. Where a note is payable "on demand and upon security given," the making of a demand accompanied by a tender of the securities is not a condition precedent to the maintenance of an action to recover upon the note, but it is sufficient for the plaintiff to produce and tender the note and the securities upon the trial. Spencer v. Drake, 84 App. Div. (N. Y.) 272. As to corporate bonds and coupons, see Williamsport Gas Co. v. Pinkerton, 95 Pa. St. 62.

The defense that the paper was not presented within a reasonable time after its issue need not be specially pleaded by an indorser; for, since the obligation of the indorser is conditional upon all the steps having been taken by the holder which the statute has prescribed as to presentment and as to notice of non-payment, the burden is on the holder to prove due and timely presentment. Commercial Nat. Bank v. Zimmerman, 185 N. Y. 210. The case last cited overrules German Am. Bank v. Mills, 99 App. Div. (N. Y.) 312, 315, where it was held that this section of the Negotiable Instruments Law creates a statute of limitations which must be pleaded. For other cases applying the statute, see Schlesinger v. Schultz, 110 App. Div. (N. Y.) 356; Citizens' Bank v. First Nat. Bank (Iowa), 113 N. W. Rep. 481.

(c) This provision applies to the indorser of a check. Columbian Banking Co. v. Bowen (Wis.) 114 N. W. Rep. 451. In the

case cited the Court said: "Keeping in mind that the discharge from liability above referred to because of unreasonable delay after the issuance of a check in presenting it for payment, is of the drawer only, and that this action is against the payee who indorsed the instrument in question without qualification and put it in circulation, we turn to section 1678-1, which provides, as to a Lill of exchange payable on demand, which from the foregoing obviously includes a check or draft on a bank of the character of the one in question, 'presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof. From the foregoing it seems plain that, as regards the payee of such an instrument as we have here, who puts the same in circulation with his unqualified indorsement thereon, and all subsequent parties thereto so indorsing the same, presentment for payment is sufficient, as regards their liability, if made within a reasonable time after the last negotiation. A bill of exchange payable on demand, regardless of its character, put in circulation, so long as its circulating character is preserved may be outstanding without impairing the liability of indorsers thereof. Formerly, the length of time within which a bill of exchange might circulate without impairing such liability was more or less uncertain, rendering it very difficult to determine any one case by the decision in another. That difficulty was removed, so far as practicable, by the provision that only the time need be considered intervening between the last negotiation and the presentment. That is recognized as a radical change in the law as it formerly existed." See also Singer Manufacturing Co. v. Summers, 143 N. C. 103; Citizens Nat. Bank v. First Nat. Bank (Iowa), 113 N. W. Rep. 481; Plover Savings Bank v. Moodie (Iowa), 110 N. W. Rep. 29, 50. In the case last cited it was said: The checks were negotiated by the appellee to the Des Moines Savings Bank, and under the statute already quoted (Code Supp. 1902, §§ 3060-a-71), reasonable time for presentation and demand is to be reckoned from the last negotiation of the paper. Checks are an almost universal substitute for money. They pass from hand to hand, bank to bank, and city to city, and within reasonable limits, it may be said that no matter how long they remain outstanding, so long as one negotiation promptly follows another and the checks are in fact in circulation the statute requires us to hold that the indorser is not legally preju

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diced by the consequent delay in their presentation for payment." Where the payee negotiates the check to his own agent the failure of the agent to present the check is the payee's own neglect. Gordon v. Levine, 194 Mass. 418. As respects discharge of the drawer by delay in making presentment, see section 322 and note.

$132. What constitutes a sufficient presentment.— Presentment for payment, to be sufficient, must be made:

1. By the holder, or by some person authorized to receive payment on his behalf (a);

2. At a reasonable hour on a business day (b);

3. At a proper place as herein defined (c);

4. To the person primarily liable on the instrument, or if he is absent or inaccessible, to any person found at the place where the presentment is made (d).

(a) The mere possession of a negotiable instrument which is payable to the order of the payee, and is indorsed by him in blank, or of a negotiable instrument payable to bearer, is in itself sufficient evidence of the right to present it and to demand payment thereof. Weber v. Orton, 91 Mo. 680; Sussex Bank v. Baldwin, 2 Harr. (N. J.) 487; Shedd v. Brett, 1 Pick. 401. And payment to such person will always be valid, unless he is known to the payer to have acquired possession wrongfully. Daniel on Negotiable Instruments, section 574. There is no need of a power of attorney or written instrument to constitute one an agent for this purpose. Shedd v. Brett, 1 Pick. 401. But the mere possession of an instrument payable to order and not indorsed by the payee is not alone sufficient evidence of the authority of an assumed agent to receive payment. Doubleday v. Kress, 50 N. Y. 410. Where a bank holding a note for collection sends it for the same purpose to the bank where it is payable, the latter is authorized to demand payment and give notice of dishonor. Blakeslee v. Hewett, 16 Wis. 341.

(b) Except in cases where the instrument is payable at a bank, the holder has the whole day in which to present the same, the only limitation being that he must present it at a reasonable

hour, and this may depend upon the circumstances of the case. Salt Springs National Bank v. Burton, 58 N. Y. 430; Farnsworth v. Allen, 4 Gray, 453; Barclay v. Bailey, 2 Camp. 527; Wilkins v. Jadis, 2 B. & Ad. 188. As late as nine o'clock in the evening has been held to be a reasonable hour. Farnsworth v. Allen, 4 Gray, 453. But it is only when presentment is at the residence that the time is extended into the hours of rest. If it is at the place of business it must be during those business hours when such places are customarily open, or, at least, while some one is there competent to give an answer. Waring v. Betts, 90 Va. 46, 53. As to when instruments payable at bank must be presented, see section 135.

(c) See next section.

(d) Cromwell v. Hynson, 2 Camp. 596; Phillips v. Astberg, 2 Taunt. 206.

§ 133. Place of presentment.—Presentment for payment is made at the proper place.

1. Where a place of payment is specified in the instrument and it is there presented;

2. Where no place of payment is specified, but the address of the person to make payment is given in the instrument and it is there presented;

3. Where no place of payment is specified and no address is given and the instrument is presented at the usual place of business or residence of the person to make payment (a).

4. In any other case if presented to the person to make payment wherever he can be found, or if presented at his last known place of business or residence (b).

(a) Gates v. Beecher, 60 N. Y. 518, 522; Holtz v. Boppe, 37 N. Y. 634. A presentment at the maker's usual place of business during business hours, there being no one there to answer, is a sufficient demand to charge the indorser; for the maker is bound to have a suitable person there to answer inquiries, and pay his notes, if there demanded. Baumgardner v. Reeves, 35 Pa. St. 250; Wallace v. Crilly, 46 Wis. 577. And presentment at such place is sufficient, though it be closed, there being no explanation fur