the proper clerk or bookkeeper;39 to the officers of another bank occupying the premises of the specified bank at which the note is payable; or to a receiver of the bank at his office.41 But it is not sufficient to make presentment out of banking hours to a clerk of the bank who has no authority to pay the paper, nor any control of the funds;*2 but where the presentment is otherwise sufficient 48 or unnecessary,** as where a bank is closed when a notary calls during business hours with paper payable there, the fact that he afterward makes demand on one who has been, but is no longer, an employee of the bank, does not affect the sufficiency of the demand at the bank or the failure to make it.46

43

45

[781] 3. Where Several Are Primarily Liablea. In General. If several persons who are not partners have joined as makers or acceptors of a note or a bill, presentment must be made to all, unless there is sufficient excuse.48 This is true, although one may in reality be surety for the other joint maker and known to be such by the indorsee.49 The same rule has been applied by some of the courts in 39. Armor v. Lewis, 16 La. 331; Merchants' Bank v. Spicer, 6 Wend. (N. Y.) 443.

[a] Delivery of check to bank porter. The delivery of a bank check by one bank to the porter of another bank on which the check is drawn, and the return of the same as not good, accompanied by evidence of the invariable practice of the porter to present checks thus received and to return them if dishonored on the same day as that on which they are delivered to him is sufficient proof of presentment to authorize the submission of the case to the jury. Merchants' Bank v. Spicer, 6 Wend. (N. Y.) 443.

40. Faulkner v. Faulkner, 73 Mo. 327; Union Bank v. McKilligan, 4 Man. 29.

41. Hutchison V. Crutcher, 98 Tenn. 421, 39 SW 725, 37 LRA 89; Ballard v. Burton, 64 Vt. 387, 24 A 769, 16 LRA 664. But see Schlesinger v. Schultz, 110 App. Div. 356, 96 NYS 383 (holding that a note made payable at a national bank which has been placed in the hands of a receiver need not be presented to the receiver for payment, the receiver having no authority to appropriate any money in his hands to the payment of the note); Jackson v. McInnis, 33 Or. 529, 54 P 884, 55 P 535, 72 AmSR 755, 43 LRA 128 (holding that a demand on the receiver of a bank which issued a certificate of deposit is insufficient to charge an in dorser, as the receiver is not an agent of the bank, nor authorized to pay the certificate).

[a] A certificate of deposit, payable on its return to the bank, may be presented to the receiver. Ballard v. Burton, 64 Vt. 387, 24 A 769, 16 LRA 664.

42. Newark India Rubber Mfg. Co. v. Bishop, 3 E. D. Smith (N. Y.) 48: Swan v. Hodges, 3 Head (Tenn.) 251. 43. See supra §§ 762-778. 44. See supra §§ 739-747. 45. See supra § 765. 46. Berg v. Abbott, 83 Pa. 177, 24 AmR 158 and note.

47. U. S. Tayloe v. Davidson, 23 F. Cas. No. 13,769, 2 Cranch C. C. 434. Iowa. Closz v. Miracle, 103 Iowa 198, 72 NW 502; Red Oak Bank v. Orvis, 40 Iowa 332; Blake v. McMillen, 33 Iowa 150, 22 Iowa 358; Allen v. Harrah, 30 Iowa 363.

Mass.-Arnold v. Dresser, 8 Allen 435; Union Bank v. Willis, 8 Metc. 504, 41 AmD 541; Gilbert v. Field, 1 Pick. 413 note.

Mo.-Nave v. Richardson, 36 Mo.

130.

N. Y.-Shutts v. Fingar, 100 N. Y. 539, 3 NE 588, 53 AmR 231; Gates v.

Beecher, 60 N. Y. Willis v. Green, 5 351.

56

[a] Under a statute (Mass. Pub. St. c 77 § 15), providing that persons becoming parties to a note by signature on the back thereof in blank before delivery shall be entitled to notice of nonpayment the same as an indorser, it is not necessary that demand for payment shall be made on all of those so signing in order to bind the others so signing. Legg v. Vinal, 165 Mass. 555, 43 NE 518.

48. Blake v. McMillen, 33 Iowa 150; Smith v. Little, 10 N. H. 526; McClelland v. Bishop, 42 Oh. St. 113.

[a] Where a joint note was executed by a husband and a wife and the husband deşerted his wife before maturity and could not be found, it was held that a demand on the wife was sufficient. McClelland v. Bishop, 42 Oh. St. 113.

[b] Note payable in particular town.-If some of the makers of a note reside in the particular town in which the note is made payable, it is sufficient for the holder to present it at their place of business or residence, unless the other maker who resides elsewhere gives notice at what place in that town he will be ready to pay it. Smith v. Little, 10 N. H. 526.

[c] If one of the joint makers of a note dies before maturity, demand is to be made of the surviving maker. Blake v. McMillen, 33 Iowa 150.

49. Britt v. Lawson, 15 Hun (N. Y.) 123.

50. U. S.-Tayloe v. Davidson, 23 F. Cas. No. 13,769, 2 Cranch C. C. 434.

Conn.-Shepard v. Hawley, 1 Conn. 367, 6 AmD 244. Iowa.-Blake v. McMillen, 22 Iowa

358.

Mass.-Union Bank V. Willis, 8 Metc. 504, 41 AmD 541. But compare Shed v. Brett, 1 Pick. 401, 11 AmD 209 (where a demand made on one of the makers by an agent having the note with him was held sufficient).

N. Y.-Britt v. Lawson, 15 Hun 123: Willis v. Green, 5 Hill 232, 40 AmD 351.

Wash.-Benedict V. Schmieg, 13 Wash. 476, 43 P 374, 52 AmSR 61, 36 LRA 703 and note.

51. Hestres v. Petrovic, 1 Rob. (La.) 119; McClelland v. Bishop, 42 Oh. St. 113; Harris v. Clark, 10 Oh. 5; Greenough v. Smead, 1 Oh. Dec. (Reprint) 516, 10 WestLJ 271 [aff 3 Oh. St. 415].

52. New York Nat. Bank v. Kennedy, 145 App. Div. 669, 130 NYS 412.

53. U. S.-Greatrake v. Brown, 10 F. Cas. No. 5,743, 2 Cranch C. C. 541.

Ala.-Brown v. Turner, 15 Ala. 832. Iowa.-Mt. Pleasant Branch State Bank v. McLeran, 26 Iowa 306.

Minn.-Coon v. Pruden, 25 Minn.

105.

Mo.-St. Louis Fourth Nat. Bank v. Heuschen, 52 Mo. 207; Hunter V. Hempstead, 1 Mo. 67, 13 AmD 468.

N. Y.-Gates v. Beecher, 60 N. Y. 518, 19 AmR 207; Erwin v. Downs, 15 N. Y. 575; Otsego County Bank v. Warren, 18 Barb. 290. Eng.-Porthouse V. Parker, 1 Campb. 32.

Ont.-Michigan Bank v. Gray, 1 U. C. Q. B. 422.

[a] Apparent partnerships.-The rule applies if an acceptance is by an apparent partnership. Erwin v. Downs, 15 N. Y. 575.

[b] Note by partner to the firm.Where a note is made by a member of a firm to the order of the firm and is indorsed by it, the relation of the firm is that of indorser and demand on the maker is necessary to make the firm liable. Coon v. Pruden, 25 Minn. 105.

54. U. S.-Greatrake v. Brown, 10 F. Cas. No. 5,743, 2 Cranch C. C. 541 (in case of renewal note).

Ala.-Brown v. Turner, 15 Ala. 832. La.-Helme v. Middleton, 14 La. Ann. 484; Wogan v. Thompson, 9 La. Ann. 300.

Md.-Crowley v. Barry, 4 Gill 194. Mo.-St. Louis Fourth Nat. Bank v. Heuschen, 52 Mo. 207.

N. Y.-Gates v. Beecher, 60 N. Y. 518, 19 AmR 207 [aff 3 Thomps. & C. 404].

Vt.-Ballard v. Burten, 64 Vt. 387, 24 A 769, 16 LRA 664.

[a] Thus a demand made on a member of a firm at the place which one of the firm said was their place of business was good, even though the partnership had been dissolved. St. Louis Fourth Nat. Bank V. Heuschen, 52 Mo. 207.

[b] Dissolution by bankruptcy is within the rule. Gates v. Beecher, 60 N. Y. 518, 19 AmR 207 [aff 3 Thomps. & C. 404].

[c] A renewal note is within the rule. Greatrake v. Brown, 10 F. Cas. No. 5,743, 2 Cranch C. C. 541.

55. 56.

Crowley v. Barry, 4 Gill 194. Cayuga County Bank v. Hunt, 2 Hill (N. Y.) 635; Barlow v. Coggan, 1 Wash. T. 257.

57.

Brown v. Turner, 15 Ala. 832.

payment is specified, presentment for payment may be made to any one of them, even though there has been a dissolution of the firm.58

[ 783] 4. To Personal Representatives. If the acceptor or the maker dies before maturity of the paper, presentment should be made to his personal representative, if appointed, and if he can be found or his address is known,59 even though the indorser himself is an executor or an administrator.60 The rule applies, even though the executor or the administrator is temporarily absent, notwithstanding the notary is ignorant of the maker's death,61 and although the maker's estate is insolvent.62 If no personal representative has been appointed, payment of a note should be demanded at the last residence of the deceased maker,63 or it may be presented to the widow of the maker at such residence, she answering that it will not be paid at present, although she has nothing to do with the estate.65 Presentation of a note, payable thirty days after demand, to the administrator of the deceased maker as a claim against the estate is not a sufficient de

58. See statutory provisions. 59. Iowa.-Blake v. McMillen, 33 Iowa 150.

La.-Toby v. Maurian, 7 La. 493. Me.-Gower v. Moore, 25 Me. 16, 43 AmD 247.

Mo.-Frayzer v. Dameron, 6 Mo. A.

153.

N. Y.-Piper v. Hayward, 71 Misc. 41, 127 NYS 240.

S. C.-Price v. Young, 12 S. C. L. 339; Price v. Young, 10 S. C. L. 438.

[a] If a joint maker of a note dies before its maturity, demand must be made on his administrator. Blake v. McMillen, 33 Iowa 150.

[b] A notary who is informed at the residence of the maker of the latter's death should make demand of the heirs or representatives, and not merely of a colored woman on the place. Toby v. Maurian, 7 La.

493.

61. Frayzer v. Dameron, 6 Mo. A. 153.

62. Gower v. Mcore, 25 Me. 16, 43 AmD 247.

63. Huff v. Ashcraft, 1 Disn. 277, 12 Oh. Dec. (Reprint) 620 [rev 1 Disn. 60, 12 Oh. Dec. (Reprint) 487].

64. Washington Bank v. Reynolds, 2 F. Cas. No. 954, 2 Cranch C. C. 289; Simon v. Reynaud, 10 La. Ann. 506. 65. Washington Bank v. Reynolds, 2 F. Cas. No. 954, 2 Cranch C. C. 289. 66. Chase v. Evoy, 49 Cal. 467. 67. Burrill V. Smith, 7 Pick. (Mass.) 291; Hale v. Burr, 12 Mass. 86; Davis v. Francisco, 11 Mo. 572, 49 AmD 98.

68. Reed v. Spear, 107 App. Div. 144, 94 NYS 1007.

[a] What constitutes reasonable diligence.-On the day when an installment on a rote became due, the holder went two or three times to the banking office of the administrator of the deceased maker to make presentment, but was unable to find him. He also sought him at a railroad station near the seat of his other business interests at a time when it might be expected he would be there. It was held to warrant a finding that the holder exercised reasonable diligence to present the note for payment, and hence an indorser would be liable on receiving sufficient notice of its dishonor. Reed v. Spear, 107 App. Div. 144, 94 NYS 1007. [b] So in England, if no place of payment is named. Bills Exch. Act § 45.

64

mand.66 Demand is unnecessary if a note matures after the death of the maker and before the expiration of the year during which the administrators cannot be sued.67

The Negotiable Instruments Law expressly provides that, where the person primarily liable on the instrument is dead, and no place of payment is specified, presentment for payment must be made to his personal representative, if such there be, and if, with the exercise of reasonable diligence, he can be found.68

In the case of partners, no demand need be made on the representative of a deceased partner, where the bill of exchange mentions no place for payment and was drawn on, and accepted by, the partners as such.69

[784] G. By Whom Made-1. In General. Presentment and demand may be made, not only by the holder of a bill or note himself, but also by any one having possession and authority from him to receive payment,70 unless there is some stipulation to the contrary;71 71 and the authority of an

130.

[f] Demand by the payee of a lost check-Where the addressee and payee of a check sent by mail never received the same, and it was paid by the drawee on a forged indorsement, a demand for payment by the payee was in legal contemplation as agent of the owner of the check, and was a good demand. Garthwaite v. Tulare Bank, 134 Cal. 237, 66 P 326.

[g] Demand by party on himself. -(1) "It seems to be a very clear proposition that a demand of payment made by John T. Smith & Co. of themselves is no demand at all. A demand should have been made by some third person authorized to receive the actual possession of the fund." Burch v. Newberry, 1 Barb. 648, 666 [aff 10 N. Y. 374, Seld. 28]. (2) But where the payee of a demand note died without having made demand, and two months thereafter the indorser on the note was made an administrator of his estate, and on the back of the note indorsed the words, "demand made for payment," defendant being the treasurer of the corporation maker of the note, it was held that the act of defendant in so indorsing the note was a demand by himself, as administrator, on himself, as treasurer, and that as indorser he necessarily had notice thereof. Yates v. Goodwin, 96 Me. 90, 51 A 804.

[h] Disputed title. The holder should present the note, although his right or title is disputed, as by reason of the indorser's bankruptcy. Jones v. Fort, 9 B. & C. 764, 17 ECL 340, 109 Reprint 284.

71. Farmers' Bank v. Johnson, 134 Ga. 486, 492, 68 SE 85, 137 AmSR 242, 30 LRANS 697; Commercial Nat. Bank v. Gastonia First Nat. Bank, 118 N. C. 783, 24 SE 524, 54 AmSR 753, 32 LRA 712.

"A check being in the nature of an order on a bank or banker to pay a certain sum purporting to be on deposit, there would seem to be no reason why the drawer could not direct the bank to pay only when presented through a specified channel or by a particular person or bank. The drawer is not compelled to make the check payable to bearer or order. Likewise no sound reason is perceived why, in giving direction to the bank of deposit, he cannot make an addition to the mere order for payment. If the person to whom the check is delivered is not willing to accept it with such direction, he can reject it; but if he accepts it payable only through a particular bank, or through a particular banker, he cannot insist that the bank on which it is drawn

agent need not be in writing.72 However, if the authority of a person presenting paper is questioned by the maker or the acceptor, and refusal to comply with the demand is based on a supposed want of authority, such authority must be shown.73 Presentment may be made by the personal representative of a deceased owner," by an assignee in bankruptcy or insolvency,75 or by a pledgee if he holds the note;76 and one who holds negotiable paper as collateral security for a debt due him should present it for payment." A power of attorney authorizing demand for payment is revoked by the death of the principal before such de

mand.78

79

77

It need not be made by a notary in order to charge indorsers, except according to some decisions in the case of a foreign bill.80

The Negotiable Instruments Law expressly provides that presentment for payment, to be sufficient, must be made by the holder, or by some person must disregard this direction given to it by its depositor on the face of the paper." Farmers' Bank v. Johnson, 134 Ga. 486, 492, 68 SE 85, 137 AmSR 242, 30 LRANS 697 and note.

[a] In case of a valid restriction stamped on the face of the check (1) that it will positively not be paid to a certain company or its agent, there must be a presentation to the drawee through some agency other than the one specified in order to hold the drawer of such a check. Commercial Nat. Bank V. Gastonia First Nat. Bank, 118 N. C. 783, 24 SE 524, 54 AmSR 753, 32 LRA 712. (2) A statement in a check that it is "payable" through a certain named bank in another city means that it is to be paid in that way and indicates the exclusive method of collection, instead of giving to the holder an option to present the check through that medium or through any other medium to the bank on which it is drawn. Where a check was drawn on a bank located in another town than the one in which the drawer resided, and immediately following the direction to the drawee bank, which was in the lower left-hand corner of the check, there were stamped, at the time the check was drawn, the words "payable through" a named bank in another city "at current rate," such words require the presentation of the check through the bank so named, and hence the drawee bank is not required to pay the check when presented directly by a third bank. Farmers' Bank v. Johnson, 134 Ga. 486, 68 SE 85, 137 AmSR 242, 3 LRANS 697 and note.

72. Gilbert V. Field, 1 Pick. (Mass.) 413 note; Shed v. Brett, 1 Pick. (Mass.) 401, 11 AmD 209; Hartford Bank v. Barry, 17 Mass. 94; Freeman v. Boynton, 7 Mass. 483; Sussex Bank v. Baldwin, 17 N. J. L. 487; Utica Bank v. Smith, 18 Johns. (N. Y.) 230.

73. U. S.-Watt v. Potter, 29 F. Cas. No. 17,291, 2 Mason 77.

Miss.-Robertson v. Crane, 27 Miss. 362, 61 AmD 520.

N. H.-Ham v. Boody, 14 N. H. 27.

Tex.-Blankenship v. Berry, 28 Tex.

448.

Eng. Coore v. Callaway, 1 Esp. 115; Solomons v. Dawes, 1 Esp. 83. [a] Statement of agent insufficient. A demand for money made by a clerk who shows no authority but his own statement that he has been sent for the purpose of obtaining it is not sufficient to sustain an action for the recovery of the money. Coore v. Callaway, 1 Esp. 115.

74. White v. Stoddard, 11 Gray (Mass.) 258, 71 AmD 711.

[a] If such representative is not appointed until after maturity of the

authorized to receive payment on his behalf.81 It is held thereunder that a bank to whom a check was indorsed may present it to the drawee bank through the clearing house.82

[ 785] 2. Person in Lawful Possession of Paper. Presentment of a bill or a note for payment may be made by anyone lawfully in possession thereof, and possession at the time and place of payment is prima facie evidence of authority to demand payment.83 Paper payable to bearer or indorsed in blank is within this rule. However, if presentment is made by one wrongfully in possession of the paper, without authority from the owner, the indorser is not bound.85

[§ 786] 3. Foreign Bills. As a general rule, a foreign bill must be presented by a notary public,se and the weight of authority is to the effect that the notary must make the presentment personally and that it cannot be presented by his clerk or deputy,87 unless it is shown that there is an

note.

holder and owner of the note, may maintain an action thereon in his own name, and his possession is, in the absence of anything to show to the contrary, evidence that he is the bona fide holder and owner. Brinkley v. Going, 1 Ill. 366.

84. Ewen v. Wilbor, 99 Ill. A. 132 [aff 208 111. 492, 70 NE 575]; Cone v. Brown, 49 S. C. L. 262. To same effect Sprigg v. Cuny, 7 Mart. N. S. (La.) 253.

[a] If a bill of exchange, payable to a particular person, is indorsed in blank by him, but is made payable to a particular person by the last indorsement, it may be presented by the last indorser if he is in bona fide possession, without the indorsement of the last indorsee. Bachellor Priest, 12 Pick. (Mass.) 399.

85. Hofrichter V. Enyeart, Nebr. 771, 99 NW 658.

V.

71

86. U. S.-Sacrider v. Brown, 21 F. Cas. No. 12,205, 3 McLean 481.

Ala.-Donegan v. Wood, 49 Ala. 242, 20 AmR 275; Eason v. Isbell, 42 Ala. 456.

Ky.-Com. Bank v. Garey, 6 B. Mon. 626; Chenowith v. Chamberlin, 6 B. Mon. 60, 43 AmD 145. Mass.-Cribbs v. Adams, 13 Gray

597.

Miss.-Ellis v. Commercial Bank, 8 Miss. 294, 40 AmD 63; Carmichael v. Pennsylvania Bank, 5 Miss. 567, 35 AmD 408.

Mo.-Commercial dale, 36 Mo. 563.

Bank v. Barks

N. J.-Sussex Bank v. Baldwin, 17 N. J. L. 487.

N. Y.-Commercial Bank v. Varnum, 49 N. Y. 269.

S. C.-Cape Fear Bank v. Stinemetz, 19 S. Č. L. 44. Bank, 7

Tenn.-Carter V. Union Humphr. 548, 46 AmD 89. Tex.-Locke v. Huling, 24 Tex. 311. Eng.-Leftley v. Mills, 4 T. R. 170, 100 Reprint 955.

[a] A justice of the peace, if ex officio a notary public, may make demand for payment of a bill or a note and may protest the same. Austen v. Miller, 2 F. Cas. No. 661, 5 McLean 153.

[b] Son of holder as notary-The relation which exists between a notary and the holder of commercial paper with regard to demand, protest, and notice to the drawer or the indorser is that of principal and agent, and a son of the holder of such paper, if he is a notary, may act as agent of his father in his notarial capacity. Eason v. Isbell, 42 Ala. 456.

such place, which are lost by the negligence of the holder in presenting the note, the maker is discharged.20 The parties may, by parol agreement, fix on a place for payment;21 but the place for payment cannot be assumed to be the place where a note is dated 22 or where it is made negotiable,23 although it is sometimes inferred from the circumstances that payment at the place where the note is dated was intended.24

Where no place for payment is designated in a bill of exchange, it is payable at the place named in the drawee's address 25 or at his residence;20 26 or, as against the drawer, at the place where the bill was drawn;27 and, as against an indorser, at the indorser's residence.28

[b] Lost paper-Where the maker of a note has notice that it has been lost, he is liable to the true owner if he pays it to anyone except a bona fide holder for value before maturity, and it seems that in such a case the maker may require the person presenting the paper to establish his title. Bainbridge v. Louisville, 83 Ky. 285, 4 AmSR 153.

13.

12. See statutory provisions. See statutory provisions. 14. Cross references: See generally Payment [30 Cyc 1185]. Provisions in instrument as to see supra § 246-250.

15. U. S.-Campbell v. Clark, 4 F. Cas. No. 2,355a, Hempst. 67.

123

Iowa.-Baily V. Birkhofer, Iowa 59, 98 NW 594; Adair v. Egland, 58 Iowa 314, 12 NW 277; Hartford Bank v. Green, 11 Iowa 476. Tex.-Bullard v. Thompson, 35 Tex.

313.

Utah.-McCauley V. Leavitt, 10 Utah 91, 37 P 164. Wash.-Bardsley V. Washington | Mill Co., 54 Wash, 553, 103 P 822, 132 AmSR 1133.

Compare however Lockridge V. Stone, 7 Ky. Op. 35 (holding that, if the place for payment is not designated, a note is payable at the residence of the payee); McIntyre v. Michigan State Ins. Co., 52 Mich. 188, 17 NW 781 (to the effect that such a note is presumed to have been intended to be paid at the payee's residence).

[a] Rule applied where the note would be void for usury by the law of the place of execution, and where it was dated at the maker's place of residence. Bullard v. Thompson, 35 Tex. 313.

[b] In Utah, by statute, it is payable "at the residence or place of business of the maker, or wherever he may be found." McCauley v. Leavitt, 10 Utah 91, 37 P 164.

[c] If the post office address of the maker was stated to be in one county and the note was executed in another county, the court may find that the maker resided in either county. Adair v. Egland, 58 Iowa 314, 12 NW 277.

[d] Partnership notes are payable at the place of business of the firm, other notes made at the same time and in the same transaction having been made expressly payable there. Greenboum's Est., 173 Pa. 507, 33 A 224, 51 AmSR 774. 16. Harbor v. Morgan, 4 Ind. 158; Stansbury v. Embrey, 128 Tenn. 103, 158 SW 991, 47 LRANS 980.

[a] Thus, where a note was payable in money or in wheat, at the customary prices at a certain place, the wheat was to be delivered at that place. Harbor v. Morgan, 4 Ind. 158.

[b] The making of notes payable "at any bank" in a city authorized the maker to require the holder of the notes to elect a bank at which he

Note payable in specific property. The holder is not bound to receive the property at a place or on S. C.-Miller v. Thompson, 16 S. C. L. 526; Galpin v. Hard, 14 S. C. L. 394, 15 AmD 640.

[c] Note payable at "office" may be construed as meaning the office of the payee. Burnham v. Michigan Mut. L. Ins. Co., 149 Mich. 84, 112 NW 704.

17. Ala.-Smith v. Robinson, 11 Ala. 270.

Iowa.-Equitable L. Ins. Co. V. Gleason, 56 Iowa 47, 8 NW 790. Ky.-German Nat. Bank v. Zimmer, 141 Ky. 401, 132 SW 1023.

Tex. Cook v. Crawford, 4 Tex. 420. W. Va.-Hefflebower v. Detrick, 27 W. Va. 16.

[a] Thus, where a note which specifies no place of payment is discounted within the state where it is executed, and continues to be owned and held within that state, it will be treated as payable within that state, in the absence of any evidence to the contrary. German Nat. Bank v. Zimmer, 141 Ky. 401, 132 SW 1023.

[b] Where there is no proof of the place where the note was made (1) it will be presumed to have been made, and to be payable, within the state (Cook v. Crawford, 4 Tex. 420; Hefflebower v. Detrick, 27 W. Va. 16), (2) and that the place where it is dated is within the state (Smith v. Robinson, 11 Ala. 270; Equitable L. Ins. Co. v. Gleason, 56 Iowa 47, 8 NW 790).

18. Strawberry Point Bank v. Lee, 117 Mich. 122, 75 NW 444; Gage v. McSweeney, 74 Vt. 370, 52 A 969.

[a] Illustrations.—(1) Where a note which specifies no place of payment is executed and delivered at a place in the state where the maker resides and where the debt which it represents was contracted, the note is payable at such place, although the payee resided in another state when the note was given and continued to do so. Gage v. McSweeney, 74 Vt. 370, 52 A 969. (2) A note is payable where the maker resides, that being the place where it was dated and signed, although describing the payee as of another state. Strawberry Point Bank v. Lee, 117 Mich. 122, 75 NW 444.

19. Smith v. Mead, 3 Conn. 253, 8 AmD 183.

20. See supra § 763.

21. Brent v. Metropolis Bank, 1 Pet (U. S.) 89, 7 L. ed. 65; Meyer v. Hibsher, 47 N. Y. 265; Rose v. McCracken, 20 Tex. Civ. A. 637, 50 SW 152.

22. U. S.-Burrows v. Hannegan, 4 F. Cas. No. 2,205, 1 McLean 309. Me.-Pierce v. Whitney, 22 Me. 113, 29 Me. 188.

N. Y.-Taylor v. Snyder, 3 Den. 145, 45 AmD 457; Bank of America v. Woodworth, 18 Johns. 315; Anderson v. Drake, 14 Johns. 114, 7 AmD 442. Pa-Lightner v. Will, 2 Watts &

S. 140.

no

Vt.-Blodgett v. Durgin, 32 Vt. 361. [a] Illustration.-A circumstance of a note being dated at a particular place, as Charleston, furnishes presumption of its being payable at that place, nor of its being intended to be so. It may afford a reasonable ground for presumption that the person making it was at Charleston when it was made, but there is no evidence that he meant to pay it there, or that he resided there. Miller v. Thompson, 16 S. C. L. 526.

23. Brent v. Metropolis Bank, 1 Pet. (U. S.) 89, 7 L. ed. 65.

24. Ala.-Rudulph v. Brewer, 96 Ala. 189, 11 S 314 (where "J. L. Holmes' office" was designated by the date); Schuessler v. Watson, 37 Ala. 98, 76 AmD 348 (note is not made payable in California because it is payable "after my [the maker's] arrival in San Francisco").

Ill-Lewis v. Headley, 36 Ill. 433, 87 AmD 227.

472.

N. Y.-Stewart v. Eden, 2 Cal. 121, 2 AmD 222.

R. I.-Hazard v. Spencer, 17 R. I. 561, 23 A 729 (where dated "Providence, R. I." and payable "at bank").

S. D.-Jones v. Fidelity L. & T. Co., 7 S. D. 122, 63 NW 553 (where it is secured by a mortgage in that state and contains the stipulation, "It is agreed that this note is executed and is to be construed under the laws" of such state).

Tex.-Bullard v. Thompson, 35 Tex.

313.

25. U. S.-Cox v. New York Nat. Bank, 100 U. S. 704, 25 L. ed. 739.

Ill.-Abt v. American Trust, etc., Bank. 159 Ill. 467, 42 NE 856, 50 AmSR 175.

Md. Lizardi v. Cohen, 3 Gill 430. Mass.-Worcester Bank v. Wells, 8 Metc. 107.

N. J. Brownell v. Freese, 35 N. J. L. 285, 10 AmR 239. Okl.-Tulsa First Nat. Bank V. Muskogee Pipe Line Co., 40 Okl. 603, 605, 139 P 1136 [quot Cycl.

26. Collins v. Sabatier, 19 La. Ann. 299; Tulsa First Nat. Bank v. Muskogee Pipe Line Co., 40 Okl. 603, 605, 139 P 1136 [quot Cyc]; Mitchell v. Baring, 10 B. & C. 4, 21 ECL 12, 109 Reprint 352, 4 C. & P. 35, 19 ECL 395.

27. Brownell v. Freese, 35 N. J. L. 285, 10 AmR 239; Story v. McKay, 15 Ont. 169. But see Sharp v. Bailey, 9 B. & C. 44, 17 ECL 29, 109 Reprint 17 (where it was held that the bill is presumably accommodation paper if payable at the drawer's residence).

28. Prentiss v. Savage, 13 Mass. 20; Powers v. Lynch, 3 Mass. 77; Hicks v. Brown, 12 Johns. (N. Y.) 142; Potter v. Brown, 5 East 124, 102 Reprint 1016.