WARING V. BETTS.

[90 VIRGINIA, 46.]

NEGOTIABLE Instruments — WAIVER OF FORMAL PRESENTMENT. — If, on demand for payment of a note, an exhibition of the instrument is not asked for, and the party on whom the demand is made declines to pay on other grounds, a formal, actual presentment of the instrument is waived.

NEGOTIABLE INSTRUMENTS-PResentment and DEMAND.-Although a note is made payable at a bank, presentment and demand for payment at the bank within banking hours is excused if the bank has ceased to exist, and in such case presentment to and demand on the indorser of such note and manager of the defunct bank made at his residence at 5:30 P. M. is sufficient to charge him.

ACTION on a negotiable note against J. L. Waring, maker, and W. L. Waring, Jr., and I. D. Blair, indorsers thereof. The note was made payable at the Business Men's Bank, at Richmond, Virginia; but at the time of the maturity of the note such bak had gone out of existence, and distributed its assets. Demand for payment was made on W. L. Waring, Jr., one of the indorsers and manager of such defunct bank. This demand was made at Waring's place of business at 2:30 P. M. of August 29, 1892. Waring refused to pay the note on the ground that he was not authorized to represent said bank; that he had none of its assets in his hands; that said assets had been distributed, and the bank retired from business. Presentment of the note was afterward sought to be made to Waring on the same day at 5:30 P. M., both at his place of business and at his residence. Failing to find him at either place the note was duly protested for payment. Judgment for plaintiff. A writ of error was obtained.

Berkeley & Harrison, for the plaintiffs in error.

E. E. Bouldin, for the defendant in error.

51 LACY, J. The first question arising here is that raised by the demurrer. The declaration states a good case, and sets forth that on its due day it was duly presented for payment of the sum of money therein specified, required, payment refused, and that it was duly protested, etc.

And the defendants' demurrer to the plaintiff's declaration was properly overruled.

The claim of the defendants is that there was no presentment of the note, because when payment was demanded of

the indorser, W. L. Waring, Jr., manager of the late Business Men's Bank, Mr. Glenn did not have the note in his possession, and could not have presented it, but, as has been seen from the facts found by the jury, payment was refused by Waring, and the note not asked for, but payment refused, and the statement made that he was not authorized to represent the bank, which had ceased to do business and had distributed its assets.

Presentment of the bill or note and demand of payment should be made by an actual exhibition of the instrument itself; or at least the demand of payment should be accompanied by some clear indication that the instrument is at hand ready to be delivered, and such must really be the case. This is requisite in order that the drawer or acceptor may be able to judge: 1. Of the genuineness of the instru ment; 2. Of the right of the holder to receive payment; and 3. That he may immediately reclaim possession of, upon paying the amount. If, on demand of payment, the exhibition of the instrument is not asked for, and the party of whom demand is made decline on other grounds, a formal presentment by actual exhibition of the paper is considered as waived: Daniell on Negotiable Instruments, p. 485, sec. 654, citing Lockwood v. Crawford, 18 Conn. 361, and Fall River Union Bank v. Willard, 5 Met. (Mass.) 216.

52 All the parties subsequent to the principal payer are bound only as his guarantors, and promise to pay only on condition that a proper demand of payment be made, and due notice be given to them in case the note or bill is dishonored. And we repeat this as one of the fundamental principles of the law of negotiable paper; and the infre quency and the character of the circumstances which will excuse the holder from making this demand, and still preserve to him all his rights as effectually as if it were made, will illustrate the stringency of the rule itself: 1 Parsons on Notes and Bills, 442. The question of excuse, then, will depend upon whether due diligence has been used, and presents the ordinary inquiry as to negligence. The principal excuses resolve themselves into two classes: 1. The impossibility of demand; 2. The acts, words, or position of a party, proving that he had no right, or waived all right to the demand of the waiver of which he would avail himself.

That impossibility should excuse nondemand is obvious, for the law compels no one to do what he cannot perform.

But it must be actual and not merely hypothetical; and, though it need not be absolute, no slight difficulty will have this effect: 1 Parsons on Notes and Bills, 442.

The circumstances which will excuse a demand are such generally as apply to a failure to present and demand pay ment within the required time, not absolutely: Parsons on Notes and Bills, 444, 445.

In this case the presentment of the note was not made at bank within the usual bank hours, with the note in possession, but as we have seen, this was excused in this case: 1. By the fact that there was no bank to present it at, and 2. Because payment was refused upon the ground that the bank had ceased to do business, and its assets distributed, and the note was not asked for nor required, payment being refused on other grounds, the right to have it produced must be considered as waived.

The note, however, was carried, during the day, to the place of business of the late manager of the bank, and the indorser 53 sought to be charged, and this being closed, it was carried to his residence, and that being also closed, it could not be presented to him, and although it was not in banking hours, it was during the daytime and before the hours of rest.

When the note is payable at a bank it is to be presented during banking hours; and the payer is allowed until the expiration of banking hours for payment. But when not to be made at bank, but to an individual, presentment may be made at any reasonable time during the day during what are termed business hours, which, it is held, range through the whole day to the hours of rest in the evening: Parsons on Notes and Bills, 447, citing Cayuga County Bank v. Hunt, 2 Hill, 635; Nelson v. Fotterall, 7 Leigh, 194.

And in the case of Farnsworth v. Allen, 4 Gray, 453, a presentment made at 9 P. M. at the maker's residence, ten miles from Boston, when he and his family had retired, was held sufficient.

And in Barclay v. Bailey, 2 Camp. 527, Lord Ellenborough sustained a presentment made as late as 8 P. M. at the house of a trader.

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 such hours when such places are customarily open, or, at least, while some one is there

competent to give an answer: Parsons on Notes and Bills, 448.

In this case there was no presentment to the maker, who could not be found, which, however, was unnecessary under section 2842 of the Code of Virginia. The protest was in due form, and duly protested, which was authorized by section 2849 of the code, although the said note was payable at a bank in this state. And under section 2850 is prima facie proof of the facts stated therein, and are substantially in accordance with the finding of the jury. It therefore appears that such presentment as was requisite was made to the indorser and late manager of the bank, and that it was impossible 54 to present the same at the bank named therein, as it had ceased to exist. We must, therefore, conclude that there has been sufficient diligence on the part of the plaintiff, and that the judgment of the court below in his favor was right, and should be affirmed.

Judgment affirmed.

NEGOTIABLE INSTRUMENTS-PRESENTMENT-WAIVER OF.-Any thing which amounts to notification of the holding of a bill amounts to presentment; no formality is required: Carmichael v. Bank, 4 How. 567; 35 Am. Dec. 408. The actual presentment of a note is unnecessary when the notary having it in his possession demands payment of the drawer and is informed that it will not be paid: Union Bank v. Lea, 7 Rob. 76; 41 Am. Dec. 275; King v. Crowell, 61 Me. 244; 14 Am. Rep. 560. See, further, the note to Berg v. Abbott, 24 Am. Rep. 160, 161.

VIRGINIA DEVELOPMENT COMPANY V. CROZER IRON COMPANY.

*[90 VIRGINIA, 126.]

CONSTITUTIONAL LAW-SPECIAL LEGISLATION.-A statute confined in its operation to the giving of prior liens to the furnishers of supplies to railway, canal, or other transportation companies, or mining or manufacturing companies, is not unconstitutional, as being special or class legislation, as all persons subject to it are treated alike under the same conditions.

CONSTITUTIONAL LAW-IMPAIRMENT OF VESTED RIGHTS.—A statute giving prior liens upon the property of common carriers, mining and manufacturing companies, for supplies furnished them, is not unconstitutional, as impairing the charter rights of such corporations to issue bonds and secure them by mortgage or otherwise. Such corporations take their charters subject to the general law of the state, and subject to such changes as may be thereafter made in such law.

CONSTITUTIONAL LAW-IMPAIRMENT OF VESTED CORPORATE RIGHTS.—The rights insured to private corporations by their charters, and the manner of their exercise, are subject to such new regulations as from time to time may be made by the state with a view to the public protection, health, and safety, and in order to guard properly the rights of other individuals and corporations. BEATUTES-CONSTRUCTION OF Creating Lien.—A statute giving to liens for supplies furnished corporations priority over mortgages and trust deeds executed by a corporation, after a certain date, affects all mortgages executed after such date and after such statute has gone into effect. Batutes Creating Liens-Supplies, What aRE.-Pig iron furnished manufacturing company engaged in manufacturing iron, steel, and other metals, is a "supply" within the meaning of a statute giving a prior lien to "persons furnishing fuel and all other supplies necessary to the operation of any manufacturing company." LIENS-PRIORITY.-Liens created by statute and given for supplies furnished manufacturing and other corporations are entitled to priority as among themselves according to the time of their acquisition, by filing, the first in order of time standing first in order of rank and priority. Griffin & Glasgow and Phlegar, Berkely & Johnson, for the appellants.

Watts, Robertson & Robertson, Penn & Cocke, and Kean & Lile, for the appellees.

197 LEWIS, P. This is a controversy between creditors of the Roanoke Rolling Mill Company, one of the defendants in the court below. The main contest is between the Pocahontas Coal Company and the Crozen Iron Company, claiming to be "supply creditors" of the defendant company, on the one hand, and the appellants, mortgage bondholders, on the other. The defendant company was chartered by the legislature of Virginia by an act approved the second day of May, 1887, and is authorized by its charter to erect rollingmills, forges, and furnaces, and to manufacture iron, steel, and other metals. It is also authorized by the ninth section of its charter to issue its bonds from time to time, and to secure the same by mortgage or deed of trust upon its property and franchises, including its franchise to be a corporation.

The bonds held by the appellants, amounting in the aggregate to twenty-five thousand dollars, are secured by a deed of trust of the 10th of January, 1890, whereby the company conveyed to a trustee certain real estate, together with all its rights, privileges, and franchises. This deed was duly admitted to record on the 24th of February of the same year.

The claim of the Pocahontas Coal Company for six thousand five hundred and eighty dollars and thirty-three cents