.39 where the drawer has provided funds to meet the bill, although afterward attached,38 or although by accident they failed to reach the drawee in time;3 where the drawee is indebted to the holder,40 although the indebtedness was on a credit which would not expire until after the bill became due; where the drawee has been in the habit of accepting bills of the drawer without regard to the state of their accounts;42 where the drawee has agreed expressly or impliedly to honor the draft; 43 or where the drawee has in. his hands securities or other evidences of debt belonging to the drawer equal to the amount of the bill.44 Acceptance as evidence of reasonable expectation. According to some of the authorities the acceptance of a bill is full proof that the drawer has effects in the hands of the drawee or that he has credit on him;45 but this doctrine has met with disapproval.46 The fact of acceptance is, however, at least a circumstance to be considered in determining the question whether or not there is reasonable ground to expect the bill to be honored; if acceptance was understood to be conditioned on the performance of certain acts by the drawer, he must on his part perform such conditions to be entitled to notice.48 49 Absence of legal tender on deposit. If the drawer draws bills payable in dollars, but has on deposit only depreciated bank notes, he will not be entitled to demand and notice, although it would seem that 38. Stanton v. Blossom, 14 Mass. 116, 7 AmD 198. [a] Attachment of the funds in the hands of the drawee after the bill has been drawn will not dispense with the giving of notice to the drawer. Stanton v. Blossom, 14 Mass. 116, 7 AmD 198. 39. Edwards v. Moses, 11 S. C. L. 433, 10 AmD 615. 40. Minehart v. Handlin, 37 Ark. 276; Walker v. Rogers, 40 Ill. 278, 89 AmD 348. 41. Claridge v. Dalton, 4 M. & S. 226, 105 Reprint 818. 42. Dickins v. Beal, 10 Pet. (U. S.) 572, 9 L. ed. 538; Dunbar v. Tyler, 44 Miss. 1; Adams v. Darby, 28 Mo. 162, 75 AmD 115; Thornburg v. Emmons, 23 W. Va. 325. [a] Thus (1) he will be justified in expecting an acceptance of his bill where, on making a consignment to the drawee, he draws before such consignment comes to hand, where he omits to send the bill of lading to the consignee, where goods were lost, where there is a fluctuating balance between him and the drawee, or where the drawee has been in the habit of accepting bills of the drawer without regard to the state of their accounts. Dickins v. Beal, 10 Pet. (U. S.) 572, 9 L. ed. 538. To same effect Adams v. Darby, 28 Mo. 162, 75 AmD 115. (2) If a bill of exchange is drawn on a person as the treasurer of a railroad company, and the drawer has theretofore, in the regular course of his business as an agent of said company, been permitted to draw similar bills on such drawee, which have always been accepted and paid by him, and the said bill of exchange is dishonored, such drawer is entitled to notice of such dishonor, although at the time he drew such bill he had no funds of his own in the hands of such drawee. Thornburg v. Emmons, 23 W. Va. 325. [b] Where accounts are in litigation.-It has been held that the drawer could not object to want of presentment and notice where he had no funds in the hands of the drawee, but was, on the contrary, indebted it must appear that the bank bills were depreciated in value at the time the deposit was made.50 Expectation of provision by third person. If the drawer has reason to expect that some third person will provide funds for the payment of the bill, it has been held that he is entitled to presentment and notice.51 Time when ground of expectation of payment must exist. It has been said that the drawer will be entitled to presentment and notice when at the time of drawing he has reason to expect that his bill will be paid.52 But the rule which is sanctioned by the weight of authority is that he will be entitled to require these formalities if at the time when the bill should have been presented he had the right to expect, reasoning on the state of facts connected with the transactions as they then existed between the drawee and himself, that the bill would be honored.53 In some jurisdictions the mere fact that the drawer had no funds in the hands of the drawee at the maturity of the bill will not dispense with notice if he had funds in the hands of the drawee at the time of its execution or any time before its maturity.54 The Negotiable Instruments Law expressly provides that notice of dishonor is not required to be given "where the drawer has no right to expect or require that the drawee or acceptor will honor the instrument.'' 55 [ 963] 3. Bankruptcy or Insolvency-a. Of of which there was a waiver of acceptance, is not entitled to notice of its dishonor, and will not be discharged by its omission, where he had no funds in the hands of the drawee, but was to place the latter in funds to pay the bill at maturity, and it was not expected that the drawee would pay without such deposit). to him at the maturity of the bill, although there had been prior transactions between the drawer and the drawee, and the former had before drawn on the latter, it appearing that when the bill in controversy matured the accounts between the parties were unsettled and in litigation. Dollfus v. Frosch, 1 Den. (N. Y.) 367. 43. U. S.-Hopkirk v. Page, 12 F. Cas. No. 6,697, 2 Brock. 20. La.-Bloodgood v. Hawthorn, 9 La. Md. Orear V. McDonald, 9 Gill 350, 52 AmD 703. Mass.-Grosvenor v. Stone, 8 Pick. 124. 79. N. C.-Austin v. Rodman, 8 N. C. 194, 9 AmD 630. Eng.-Walwyn v. St. Quintin, 1 B. & P. 652, 126 Reprint 1115. See also cases supra notes 29-42. [a] Illustration. Thus where a drawer drew a bill under the express written authority of the drawee, want of effects in the hands of the drawee was held to be insufficient as an excuse for want of notice. Austin v. Rodman, 8 N. C. 194, 9 AmD 630. 44. Campbell v. Pettengill, 7 Me. 126, 20 AmD 349; Commercial Bank v. Barksdale, 36 Mo. 563; Spooner v. Gardner, R. & M. 84, 21 ECL 707. See also Ex p. Heath, 2 Ves. & B. 240, 35 Reprint 310 (explaining the rule). 45. Pon v. Kelly, 3 N. C. 45, 2 AmD 617. See also Richie v. McCoy, 21 Miss. 541 (where it was held that acceptance raises a presumption in favor of the drawer). 46. Allen v. King, 1 F. Cas. No. 226, 4 McLean 128; Foard v. Womack, 2 Ala. 368, 371; Gillespie v. Cammack, 3 La. Ann. 248; Kinsley v. Robinson, 21 Pick. (Mass.) 327: Mobley v. Clark, 28 Barb. (N. Y.) 390; Hoffman v. Smith, 1 Cai. (N. Y.) 157. 47. Campbell v. Pettengill, 7 Me. 126, 20 AmD 349; Orear v. McDonald, 9 Gill (Md.) 350, 52 AmD 703. 48. Rhett v. Poe, 2 How. (U. S.) 457, 11 L. ed. 338. See also English v. Wall, 12 Rob. (La.) 132 (holding that the drawer of a bill, on the face 49. Lawrence v. Schmidt, 35 . 440,-85 AmD 371; Pack v. Thomas, 21 Miss. 11, 51 AmD 135. 50. Willetts v. Paine, 43 Ill. 432. Compare Kimball v. Bryan, 56 Iowa 632, 10 NW 218 (as to evidence tending to show the instrument payable in something besides money). 51. Lafitte v. Slatter, 6 Bing. 623, 19 ECL 282, 130 Reprint 1421. See also French V. Columbia Bank, 4 Cranch (U. S.) 141, 2 L. ed. 576 (inferentially supporting rule). 52. French v. Columbia Bank, 4 Cranch (U. S.) 141, 2 L. ed. 576. 53. Orear V. McDonald, 9 Gill (Md.) 350, 52 AmD 703; Eichelberger v. Finley, 7 Harr. & J. (Md.) 381, 16 AmD 312; Robins v. Gibson, 3 Campb. 334; Hammond v. Dufrene, 3 Campb. 145. [a] Receipt of funds by drawee after maturity.-Where neither at the time the bill was drawn nor at its maturity did the drawee have in his possession any funds belonging to the drawer, it was held that the drawer was not entitled to notice of dishonor, although afterward funds came into the hands of the drawee. Cathell v. Goodwin, 1 Harr. & G. (Md.) 468. 54. Richie v. McCoy, 21 Miss. 541; Edwards v. Moses, 11 S. C. L. 433, 10 AmD 615; Smith v. Thatcher, 4 B. & Ald. 200, 6 ECL 450, 106 Reprint 911; Walwyn v. St. Quintin. 1 B. & P. 652, 126 Reprint 1115; Thackray v. Blackett, 3 Campb. 164; Hammond V. Dufrene, 3 Campb. 145: Legge v. Thorpe, 12 East 171, 104 Reprint 68; Orr v. Maginnis, 7 East 359, 103 Reprint 139; Ex p. Heath, 2 Ves. & B. 240, 35 Reprint 310; Ex p. Wilson, 11 Ves. Jr. 410, 32 Reprint 1145. 55. See statutory provisions. Maker or Acceptor.56 By the decided weight of authority the insolvency or bankruptcy of the maker of a note or the acceptor of a bill does not excuse an omission to make demand or to give notice to the indorsers;57 but in some cases the courts have held otherwise,58 at least if such insolvency is notorious and not merely reputed or intended.59 With regard, however, to a guarantor, his obligation not being conditional like that of an indorser, the rule is different, and the insolvency of the parties primarily liable is as to him an excuse for a failure to give notice." 60 Gener Effect of knowledge on part of indorser. ally speaking, the fact that the indorser knew of the maker's insolvency at the time he made the indorsement does not dispense with the necessity of notice to him,61 even though the note is indorsed overdue.62 But it has been held that, where the indorser of a note knows that the maker is unable to pay the notes when due because its property is in the hands of a receiver in bankruptcy, in which the indorser had participated as president of the maker corporation, presentment of the notes and notice of dishonor are excused.63 S. C. L. 438; Edwards v. Thayer, 2 S. C. L. 217. Contra Clark v. Minton, 4 S. C. L. 185. Vt.-Nash v. Harrington, 2 Aik. 9, 16 AmD 672. Wis.-Reinke v. Wright, 93 Wis. 368, 67 NW 737. Eng.-Rhode v. Proctor, 4 B. & C. 517, 10 ECL 684, 107 Reprint 1152; Ex p. Johnson, 3 Deac. & C. 433; Esdaile V. Sowerby, 11 East 114, 103 Reprint 948; Nicholson v. Gouthit, 2 H. Bl. 609, 126 Reprint 732; De Berdt v. Atkinson, 2 H. Bl. 336, 126 Del.-Seaford First Nat. Bank v. Reprint 582. Connoway, 9 Del. 206. Iowa. Leonard v.,Olson, 99 Iowa 162, 68 NW 677, 61' AmSR 230, 35 LRA 381. Ky. Clair v. Barr, 2 A. K. Marsh. 255, 12 AmD 391 and note. Me.-Hunt V. Wadleigh, 26 Me. 271, 45 AmD 108; Greely v. Hunt, 21 Me. 455. Md.-Armstrong V. Md. 148. Thruston, 11 Mass.-Pierce v. Cate, 12 Cush. 190, 59 AmD 176; Lee Bank v. Spencer, 6 Metc. 308, 39 AmD 734; Granite Bank v. Ayers, 16 Pick. 392, 28 AmD 253; Shaw v. Reed, 12 Pick. 132; Farnum v. Fowle, 12 Mass. 89. 7 AmD 35; Sandford v. Dillaway, 10 Mass. 52, 6 Am D 99; Crossen V. Hutchinson, 9 Mass. 205, 6 AmD 55; May v. Coffin, 4 Mass. 341. To same effect Stoddard v. Doane, 7 Gray 389. But see Chandler V. Windship, 6 Mass. 310 (where bankruptcy of the maker and proof of the claim before the commissioners have been held to excuse a demand). 92. Mich.-Whitten v. Wright, 34 Mich. Minn. Farwell v. St. Paul Trust Co., 45 Minn. 495, 48 NW 326, 22 Am SR 742; Hart v. Eastman, 7 Minn. 74. Mo.-Fugitt v. Nixon, 44 Mo. 295; Jamison v. Copher, 35 Mo. 483. N. H.-Lawrence v. Langley, 14 N. H. 70. N. Y.-Carroll v. Sweet, 128 N. Y. 19, 27 NE 763, 13 LRA 43 [rev 57 N. Y. Super. 100, 5 NYS 572]; Smith v. Miller, 52 N. Y. 545; Moore v. Alexander, 63 App. Div. 100, 71 NYS 420: Manning v. Lyon, 70 Hun 345, 24 NYS 265; Benedict v. Caffe, 12 N. Y. Super. 226; Matter of Mandelbaur, 80 Misc. 475, 41 NYS 319; Moore v. Alexander, 33 Misc. 613, 68 NYS 888 [aff 63 App. Div. 100, 71 NYS 420]; O'Neill V. Meighan, 32 Misc. 516, 66 NYS 313; Myers v. Coleman, Anth. N. P. 205; Ireland v. Kip, Anth. N. P. 195. N. C.-Pons v. Kelly, 3 N. C. 204, 2 AmD 617. Oh.-Bassenhorst v. Wilby, 45 Oh. St. 333, 13 NE 75 [rev 9 Oh. Dec. (Reprint) 407, 13 CineLBul 13]. Okl. Grimes v. Tait, 21 Okl. 361, 99 P 810. Or.-Hawley v. Jette, 10 Or. 31, 45 AmR 129. Pa. Gibbs v. Cannon, 9 Serg. & R. 198, 11 AmD 699; Barton v. Baker, 1 Serg. & R. 334, 7 AmD 620. S. C.-Allwood v. Haseldon, 18 S. C. L. 457; Johnson v. Harth, 17 S. C. L. 482; Jervey v. Wilbur, 17 S. C. L. 153; Page v. Loud, 16 S. C. L. 269, 18 AmD 650; Course v. Shackleford, 11 S. C. L. 283; Price v. Young, 10 [8 C. J.-44] Sav. Newfoundl. Que. La Banque Nationale v. Martel, 17 Que. Super. 97. Newfoundl.-Newfoundland Bank v. McPherson, 2 462. [a] This is especially true where the indorser had provided funds to take up the note. De Berdt v. Atkinson, 2 H. Bl. 336, 126 Reprint 582. [b] Rule applied, although the maker declared to the holder that it would be of no use to present the note. Lee Bank v. Spencer, 6 Metc. (Mass.) 308, 39 AmD 734. [c] "The reason of the thing demonstrates that the insolvency of the maker of a note, though known to the endorser, ought not to discharge the holder from giving notice. There are various degrees of insolvency, and it rarely happens that a man is totally insolvent. So that there is a chance of getting something by an application to the debtor. Besides, if a man has nothing of his own, he may have friends, who, to relieve him from pressure, will do something for him. The endorser, therefore, has a chance of securing himself, at least, in part. The only reason that can be assigned for insolvency, taking away the necessity of notice, is, that notice could be of no use to the endorser; but it is almost impossible to prove that it might not have been of use; therefore it is necessary." Bartop V. Baker, 1 Serg. & R. Pa.) 334, 336, 7 AmD 620. [d] Insolvency of both drawer and drawee, where such facts were known to the holder at the time the bill was drawn, are sufficient to excuse notice. Mobley v. Clark, 28 Barb. (N. Y.) 390. But see Rhode v. Proctor, 4 B. & C. 517, 10 ECL 684, 107 Reprint 1152 (holding that notice must be given, although both the drawer and the acceptor are bankrupt). 58. U. S.-Offutt v. Hall, 18 F. Cas. No. 10,450, 1 Cranch C. C. 572; Patton v. Violett, 18 F. Cas. No. 10,839, 1 Cranch C. C. 463; Riddle v. Mott, 20 F. Cas. No. 11,810, 2 Cranch C. C. 73 (all under Virginia law). Ill. Hawkinson V. Olson, 48 Ill. 277. La.-Scott V. McCulloch, 16 La. Ann. 242. Tex.-Texarkana First Nat. Bank v. De Morse, (Civ. A.) 26 SW 417. [a] Although the acceptor became bankrupt between the drawing of the bill and its maturity, after disposing of the funds which had been provided by the drawer for the payment of the same, the rule was invoked. Scott Ann. 242. 59. Oliver v. Munday, 3 N. J. L. 982; Kiddell v. Ford, 5 S. C. L. 178, 6 AmD 569; Clark v. Minton, 4 S. C. L. 185. [a] Impending insolvency will not excuse a want of demand of payment from the maker of a promissory note. Walton V. Watson, 1 Mart. N. S. (La.) 537. [b] In Newfoundland, however, it has been said: "The insolvency or bankruptcy of the makers, no matter how notorious, furnished no excuse for the non-presentment of the note.' Newfoundland Sav. Bank V. McPherson, 2 Newfoundl. 462, 466. 60. See Guaranty [20 Cyc 1466]. 61. U. S.-Phipps v. Harding, 70 Fed. 468, 17 CCA 203. Contra Morris v. Gardner, 17 F. Cas. No. 9,830, 1 Cranch C. C. 203. Ala.-Adams V. Torbert, 6 Ala. 865; Hightower v. Ivy, 2 Port. 308. Conn.-Buck v. Cotton, 2 Conn. 126, 7 AmD 251. Ill.-Kimmel v. Weil, 95 Ill. A. 15. Me.-Gower v. Moore, 25 Me. 16, 43 AmD 247. But see Groton v. Dallheim, 6 Me. 476. Mass.-Farnum v. Fowle, 12 Mass. 89, 7 AmD 35; Sandford v. Dillaway, 10 Mass. 52, 6 AmD 99. 92. Mich.-Whitten v. Wright, 34 Mich. N. J.-Sussex Bank v. Baldwin, 17 N. J. L. 487. N. Y.-Bruce v. Lytle, 13 Barb. 163; Jackson v. Richards, 2 Cai. 343. N. C.-Denny v. Palmer, 27 N. C. 610. See also Cedar Falls Co. v. Wallace, 83 N. C. 225. Pa.-Barton v. Baker, 1 Serg. & R. 334, 7 AmD 620. S. C.-Jervey v. Wilbur, 17 S. C. L. 453. Contra McClellan v. Clarke, 4 S. C. L. 106; Clark v Minton [cit Kiddell v. Ford, 7 S. C. L. 678, 682]. Wis.-Wilson v. Senier, 14 Wis. 380. Contra Stothart v. Parker, 1 Overt. (Tenn.) 260; De Berdt v. Atkinson, 2 H. Bl. 336, 126 Reprint 582 [expl and doubted Holland v. Turner, 10 Conn. 308]. [a] By the law merchant the facts that the makers were insolvent all the time and that the indorser knew it do not waive presentment for payment and notice of dishonor. Kimmel v. Weil, 95 Ill. A. 15. 62. U. S.-Stewart v. French, 23 F. Cas. No. 13,427, 2 Cranch C. C. 300. Ala. Adams v. Torbert, 6 Ala. 865. Me.-Greely v. Hunt, 21 Me. 455. Mass.-Colt v. Barnard, 18 Pick. 260, 29 AmD 584. S. C.-Allwood v. Haseldon, 18 S. C. L. 457. 63. O'Bannon Co. v. Curran, 129 App. Div. 90, 113 NYS 359. See also Bessenger v. Wenzel, 161 Mich. 61, 125 NW 750, 27 LRANS 516 (where a waiver of notice was also involved). [a] Negotiable Instruments Law (L. [18971 pp 736, 739 c 612) §§ 130, 160, provide respectively, that due presentment and notice of dishonor are necessary to charge an indorser. Section 142 subd 3, and § 180 (pp 738, 742), provide that presentment for or McCulloch, 16 La. notice of nonpayment may be dispensed with by waiver. A payment V.4 .. [§ 964] b. Of Drawee. Inasmuch as it cannot be definitely known without presentment that a drawee will not be able, through friends or resources unknown to the holder, to pay a bill,84 his known or reputed insolvency is not of itself sufficient excuse for failing to make presentment for payment or to give notice of dishonor,65 provided of course the drawer had a reasonable right to expect the bill to be paid, and this is true, although the bill was accepted supra protest.67 66 failure to make demand.68 So too notice will be excused if the indorser's place of business is closed and no one is there to answer for him.69 Where specified place of payment has ceased to exist. Moreover, if demand at the place of payment specified in the instrument has become impossible by reason of the fact that the place has ceased to exist, presentment is unnecessary.70 But it has been held that it is the existence or nonexistence of the bank as a place of payment that excuses demand at that place, and not the state or location of its assets, nor the amount or character of its business.71 [§ 966] 5. Countermand of Payment. A countermand of payment by the drawer of a bill of exchange, check, or draft, both under the law merchant 72 and by the express terms of the Negotiable Goading v. Britain, | Presentment at the residence of 1 Stew. & P. 282. Iowa.-Red Oak Bank v. Orvis, 42 [ 965] 4. Closing or Abandonment of Residence or Place of Business. The fact that the maker or acceptor's residence or place of business, or the place of payment designated in the instrument, is closed at a reasonable hour for demanding payment, with no one present to answer a demand, or has been removed or abandoned, is sufficient excuse for corporation executed notes, indorsed son, 1 Ala. 373; by defendant, its president, individually. Prior to the maturity of the notes the maker was adjudged a bankrupt, and its property placed in the hands of a receiver; the adjudication being based at least in part on the written admission of defendant of the maker's inability to pay debts, coupled with a willingness that it should be adjudged a bankrupt. It was held that defendant, knowing that the maker could not pay the notes when due, because its property was in the hands of a receiver in bankruptcy, in which he participated, impliedly waived presentment of the notes and notice of dishonor, within the above sections of the Negotiable Instruments Law. O'Bannon Co. v. Curran, 129 App. Div. 90, 113 NYS 359. 64. Hawley v. Jette, 10 Or. 31, 45 AmR 129. 65. Cal.-Le Breton V. Stanley Contracting Co., 15 Cal. A. 429, 114 P 1028. Conn.-Dwight v. Scovil, 2 Conn. 654. La.-Walton v. Watson, 1 Mart. N. S. 347. Me.-Hunt v. Wadleigh, 26 Me. 271, 45 AmD 108. Md.-Grafton First Nat. Bank v. Buckhannon Bank, 80 Md. 475, 31 A 302, 27 LRA 332; Orear v. McDonald, 9 Gill 350, 52 AmD 703. N. Y.-Grant v. MacNutt, 12 Misc. 20, 33 NYS 62; Jackson v. Richards, 2 Cai. 343. N. C.-Asheville Nat. Bank v. Bradley, 117 N. C. 526, 23 SE 455; Cedar Falls Co. v. Wallace, 83 N. C. 225. Or. Hawley v. Jette, 10 Or. 31, 45 AmR 129. Eng.-Haynes v. Birks, 3 B. & P. 599, 127 Reprint 323; Whitfield V. Savage, 2 B. & P. 277, 126 Reprint 1279; Thackray v. Blackett, 3 Campb. 164; Esdaile v. Sowerby, 11 East 114, 103 Reprint 948; Nicholson v. Gouthit, 2 H. Bl. 609, 126 Reprint 732; Boultbee v. Stubbs, 18 Ves. Jr. 20, 34 Reprint 225; Ex p. Wilson, 11 Ves. Jr. 410, 32 Reprint 1145. Ont.-Blackley v. McCabe, 16 Ont. A. 295. [a] Aliter, as to checks, in Tennessee.-Jackson Ins. Co. v. Sturges, 12 Heisk. 339; Planters' Bank V. Keesee, 7 Heisk. 200; Planters' Bank v. Merritt, 7 Heisk. 177. 66. Warrensburg Co-op. Bldg. Assoc. v. Zoll, 83 Mo. 94 (check); Cedar Falls Co. v. Wallace, 83 N. C. 225. See also supra § 962. 67. Schofield v. Bayard, 3 Wend. (N. Y.) 488. 68. U. S.-Wiseman v. Chiappella, 23 How. 368, 16 L. ed. 466; Greatrake v. Brown, 10 F. Cas. No. 5,743, 2 Cranch C. C. 541. Ala. Decatur Branch Bank V. Hodges, 17 Ala. 42; Roberts v. Ma 41. Me.-Central Bank v. Allen, 16 Me. Mass.-Shed v. Brett, 1 Pick. 413. Oh.-West v. Brown, 6 Oh. St. 542; Pa.-Berg v. Abbott, 83 Pa. 177, Tenn. Sulzbacher V. Charleston V. Eng.-Hine v. Allely, 4 B. & Ad. 624, 24 ECL 275, 110 Reprint 591; Rogers v. Langford, 1 Cromp. & M. 637, 149 Reprint 555; Turner Stones, 1 D. & L. 122; Howe v. Bowes, 16 East 112, 104 Reprint 1031 [rev on other grounds 5 Taunt. 30, 1 ECL 29, 128 Reprint 596]; Crosse v. Smith, 1 M. & S. 545, 105 Reprint 204. [a] Place of business of maker or acceptor closed or unoccupied. Presentment at the place of business of the acceptor or maker has been held to be sufficient, although the place was found to be closed or unoccupied. Wiseman v. Chiappella, 23 How. (U. S.) 368, 16 L. ed. 466; Decatur Branch Bank v. Hodges, 17 Ala. 42; West v. Brown, 6 Oh. St. 542; Baumgardner v. Reeves, 35 Pa. 250; Union Bank v. Fowlkes, 2 Sneed (Tenn.) 555. To same effect State Bank v. Satterfield, 14 La. Ann. 80, 74 AmD 427; Watson V. Templeton, 11 La. Ann. 137, 66 AmD 194; Erwin v. Adams, 2 La. 318; Ellis v. Commercial Bank, 8 Miss. 294, 40 AmD 63. But see Otto v. Belden, 28 La. Ann. 302 (where it was held that, where the party seeking to make presentment goes to the place of business of the maker or acceptor and finds the place closed and no one in or about the premises of whom demand could be made, the want of demand will not be excused). the maker or acceptor has been held to be sufficient, although the place was found to be closed or unoccupied. Greatrake v. Brown, 10 F. Cas. No. 5,743, 2 Cranch C. C. 541; Red Oak Bank v. Orvis, 42 Iowa 691; Ogden v. Cowley, 2 Johns. (N. Y.) 274; Belmont Bank v. Patterson, 17 Oh. 78. But see Collins v. Butler, Str. 1087, 93 Reprint 1049 (where it was held that finding the house shut up was not in itself a sufficient excuse for want of presentment, and that it should be shown that the holder had inquired after the maker or attempted to find him out). [c] Where place of address of bill is closed. It has been held that where demand was made at the place which the bill itself indicated by its address as the drawee's place of business, but the place was closed and no person was there to give an answer, it was nevertheless sufficient. De Wolf V. Murray, 4 N. Y. Super. 166. To same effect Struthers v. Wendall, 41 Pa. 214, x0 AmD 610; Pierce v. Struthers, 27 Pa. 249; Hine v. Allely, 4 B. & Ad. 624, 24 ECL 275, 110 Reprint 591. 69. U. S.-Williams v. U. S. Bank, 2 Pet. 96; Bowie v. Blacklock, 3 F. Cas. No. 1,729, 2 Cranch C. C. 265. Ala.-John V. Selma City Nat. Bank, 62 Ala. 529, 34 AmR 35; Stephenson v. Primrose, 8 Port. 155, 33 AmD 281. Me.-Howe v. Bradley, 19 Me. 31; Lord v. Appleton, 15 Me. 270. Pa.-Hazlett V. Bragdon, 7 Pa. Super. 581. 2 Eng. Allen V. Edmundson, Exch. 719, 154 Reprint 680; Crosse v. Smith, 1 M. & S. 545, 105 Reprint 204. 70. Roberts v. Mason, 1 Ala. 373: Erwin v. Adams, 2 La. 318; Waring v. Betts, 90 Va. 46, 17 SE 739, 44 AmSR 890. 71. Bynum v. Apperson, 9 Heisk. (Tenn.) 632. [a] Thus it has been held that where the bank at which a note was payable was open at the day the note fell due, and its cashier was present to answer inquiries, it was immaterial whether, the bank was in condition to do a general banking business or not, or whether its assets were in its vaults or in some other place, however distant. Bynum v. Apperson, 9 Heisk. (Tenn.) 632. 72. U. S.-Armstrong_v. Brolaski, 46 Fed. 903; Neederer v. Barber, 17 F. Cas. No. 10,079. Ala.-Manning v. Maroney, 87 Ala. 563, 6 S 343, 13 AmSR 67. Ill.-Industrial Bank v. Bowes, 163 Ill. 70, 46 NE 10, 56 AmSR 228. Mass.-Usher v. A. S. Tucker Co., 217 Mass. 441, 105 NE 360. [b] Place of residence of maker N. H.-Child v. Moore, 6 N. H. 33. or acceptor closed or unoccupied.- N. Y.-Woodin v. Frazee, 38 N. Y. Instruments Law as far as notice of dishonor is concerned, a withdrawal of the funds on which the bill is drawn,74 or a statement to the payee that such funds are withdrawn,75 will dispense with demand or notice as to himself. But it would seem that the mere withdrawal of funds before maturity of the bill is not of itself a waiver,76 unless it is done without further reasonable expectation of providing for the bill."7 [§ 967] 6. Death of Party.78 The death of the maker or acceptor does not excuse a demand of payment and the giving of notice to the indorser,79 unless the indorsement is made after the death of the maker with full knowledge of that fact.80 It has been held, however, that where the administrator is not bound to pay within a certain time after the commencement of administration no demand need be made until after such time.81 So where no personal representative is appointed at the time. of the maturity of the paper, and the last residence of the deceased is unoccupied, it has been held that demand will be useless and may be dispensed with.82 In any event notice of dishonor is necessary, even though presentment for payment is excused because no representative has been appointed.83 Death of drawer or indorser. The death of the drawer or indorser of a bill or note does not dispense with the necessity of notice.84 Appointment of maker, holder, Super. 190; Purchase v. Mattison, 13 N. Y. Super. 587; Jacks v. Darrin, 3 E. D. Smith 557. See also Bradley Fertilizer Co. v. Lathrop, 2 NYCityCt 289. S. C.-Lilley v. Miller, 9 S. C. L. 257 note. Eng. Prideaux v. Collier, 2 Stark. 57, 3 ECL 315. But see Hill v. Heap, D. & R. N. P. 57, 16 ECL 435 (where it was held that such an order from the drawer to the drawee would dispense with notice of dishonor, but would be no excuse for nonpresentment for payment). Ont.-Blackley v. McCabe, 16 Ont. A. 295. [a] Suspension of payment and countermand of payment by the maker excuses demand and notice. Blackley v. McCabe, 16 Ont. A. 295. [b] Where payment on a check has been stopped, (1) presentment for payment is not essential to recovery. Sebree v. Thomas, 166 Ill. A. 427. (2) In such case the relations between the drawer and the payee are the same as if the check had been dishonored and notice thereof given to the drawer. Usher V. A. S. Tucker Co., 217 Mass. 441,, 105 NE 360. 73. Grant City First Nat. Bank v. Korn, (Mo. A.) 179 SW 721. 74. La. Keith v. Mackey, 5 Rob. 277, 280. Me.-Emery v. Hobson, 63 Me. 33. S. C.-Lilley v. Miller, 11 S. C. L. 257 note. Wis. Kinyon v. Stanton, 44 Wis. 479, 28 AmR 601 and note. Ont.-Blackley v. McCabe, 16 Ont. A. 295. [a] The reason is that "when the funds, destined to the payment of the bill, come, no matter how, into the hands of the drawer, he has sustained no loss, and no damages can be due him. Otherwise he would enrich himself at the expense of the holder. . . . The neglect of the holder may discharge the drawer from his then existing obligations; but it confers on him no right, nor any immunity from the consequences of his posterior act." Keith v. Mackey, 5 Rob. (La.) 277, 280. [b] Notice given to bankers by the service of a writ demanding the whole balance is a countermand of a dorser as personal representative. It has been held 93 [§ 969] 8. Illness or Death of Holder.92 While sudden illness of the holder or his collecting agent will excuse a delay in presenting a bill or forwarding a notice, it must be so sudden and severe as to prevent him not only from making the presentment personally but also from employing another to do it, and it has been held that notice of check so as to dispense with subse- | Bank, 3 Pet. (U. S.) 87, 7 L. ed. 612; quent presentment and notice. Groth v. Gyger, 31 Pa. 271, 72 AmD Blackley v. McCabe, 16 Ont. A. 295. 745; Juniata Bank v. Hale, 16 Serg. 75. Sutcliffe v. McDowell, 11 S. C. & R. (Pa.) 157, 16 AmD 558; Fraser L. 251. See also Lilley v. Miller, 11 v. McLeod, 2 Terr. L. 154. S. C. L. 257 note. drawer, or in 94 76. Adams v. Darby, 28 Mo. 162, 77. 79. Gower v. Moore, 25 Me. 16, 43 [a] In no case does the death of • [b] Proof of the death of the 80. Picklar v. Harlan, 75 Mo. 678; 81. Landry v. Stansbury, 10 La. 484; Burrill v. Smith, 7 Pick. (Mass.) 291; Hale v. Burr, 12 Mass. 86. See also Gower v. Moore, 25 Me. 16, 43 AmD 247 (where the court, in referring to the rule of the Massachusetts court, said that doubts have been expressed whether this rule is supported by reason). Contra Frayzer v. Dameron, 6 Mo. A. 153. 82. Haslett v. Kunhardt, 24 S. C. L. 189. 83. Reed v. Spear, 107 App. Div. 144, 94 NYS 1007 (construing the Negotiable Instruments Law). [a] In England, however, it has been held in that case that a presentment to the personal representative in his representative capacity is sufficient notice of dishonor to him as drawer or indorser, as the case may be. Caunt v. Thompson, 7 C. B. 400, 62 ECL 400, 137 Reprint 159. 86. Carolina Nat. Bank v. Wallace, 13 S. C. 347, 36 AmR 694. 87. Schumaker V. Quaritius, Redf. Surr. (N. Y.) 351. 5 88. Yates v. Goodwin, 96 Me. 90, 51 A 804. 89. Illness of maker see supra § 959. 90. Tunno v. Lague, 2 Johns. Cas. (N. Y.) 1, 1 AmD 141; Hanauer v. Anderson, 16 Lea (Tenn.) 340. Contra Roosevelt v. Woodhull, Anth. N. P. (N. Y.) 50. 91. Hanauer v. Anderson, 16 Lea (Tenn.) 340. [a] In Tennessee this is true both at common law and under a statute which requires the giving of the notice within a specified time after the epidemic has been declared at an end by the health authorities. The effect of such statute is simply to fix by a definite event the period of the termination of the epidemic which at common law was a matter of proof and a fruitful source of contention and also definitely to determine what would constitute a reasonable time after the epidemic had ended. Hanauer v. Anderson, 16 Lea 340. 92. Death of party to instrument see supra § 967. Illness of maker see supra § 959. 93. Newbold v. Boraef, 155 Pa. 227, 26 A 305; Wilson v. Senier, 14 Wis. 380; Smith V. Mullett, 2 Campb 208. 94. Purcell v. Allemong, 22 Gratt. (63 Va.) 739; Wilson v. Senier, 14 Wis. 380. [a] If the note may be sent by mail it has been held that personal disability would not excuse the holder for failing to make demand at the proper time. Purcell v. Allemong, 22 85. Magruder v. Georgetown Union Gratt. (63 Va.) 739. 84. Oriental Bank V. Blake, 22 Pick. (Mass.) 206. See also supra § 910. . dishonor must be given as soon as the disability is removed.95 Moreover, where the holder of a negotiable note has died, and no executor or administrator has been appointed and qualified to act at its maturity, the indorsers are liable, and will continue to be liable, if presentment is made to the maker in a reasonable time after the due appointment and qualification of an executor or administrator.96 Sickness of wife. Where, however, the delay in sending notice was caused by the absence of the holder in consequence of the sickness of his wife, it was held not to be excusable;97 so the dangerous illness of an indorser's wife, because of which he left unopened a notice received by him, it has been held, will not excuse his delay in forwarding notice promptly to his indorser." 98 [§ 970] 9. Ignorance of Residence or Address."9 If the residence or address of the maker or indorser is not known and cannot be ascertained by the exercise of reasonable diligence, demand and notice will be excused;1 and a fortiori delay in making the demand and in giving the notice will, under such circumstances, be excused;2 but in all such cases the party whose duty it is to make demand or to give notice must, in the absence of statute,3 95. Wilson v. Senier, 14 Wis. 380. 96. White v. Stoddard, 11 Gray (Mass.) 258, 71 AmD 711; Duggan v. King, 24 S. C. L. 239, 33 AmD 107. [a] Thus where the holder died and his will was proved before the maturity of the paper, but the executor renounced the trust after requesting the indorser to waive demand, a presentment by an administrator a short time after his appointment, which occurred a month after the renunciation by the executor, was sufficient. White v. Stoddard, 11 Gray (Mass.) 258, 71 AmD 711. 97. Turner v. Leech, 4 B. & Ald. 451, 6 ECL 556, 106 Reprint 1002, 4 ERC 523. 98. Turner v. Leach, Chitty Bills 1108. 99. See also supra §§ 769, 934-939. 1. Ala.-Robinson v. Hamilton, 4 Stew. & P. 91. Conn.-Hartford Bank v. Stedman, 3 Conn. 489. Iowa.-Manning First Nat. Bank v. Farneman, 93 Iowa 161, 61 NW 424. Kan.-Cornett v. Hafer, 43 Kan. 60, 22 P 1015; Davis v. Eppler, 38 Kan. 629, 16 P 793. La.-Cooley v. Shannon, 20 La. Ann. Mo.-Fugitt v. Nixon, 44 Mo. 295; Shepard v. Citizens' Ins. Co., 8 Mo. 272; Vogel v. Starr, 132 Mo. A. 430, 112 SW 27. N. H.-New York Belting, etc., Co. v. Ela, 61 N. H. 352. N. J.-Howland v. Adrain, 30 N. J. L. 41. N. Y.-Hunt v. Maybee, 7 N. Y. 266; University Press v. Williams, 48 App. Div. 190, 62 NYS 986; Stewart v. Eden, 2 Cai. 121, 2 AmD 222. See also Adams v. Leland, 30 N. Y. 309. Oh.-Walker v. Stetson, 14 Oh. St. 89, 84 AmD 362. Pa.-Duncan V. McCullough, 4 Serg. & R. 480; Smyth v. Hawthorn, 3 Rawle 355. S. C.-Galpin v. Hard, 14 S. C. L. 394, 15 AmD 640. Tenn.-Ratcliff v. Planters' Bank, 2 Sneed 425; Nichol v. Bate, 7 Yerg. 305, 27 AmD 505. exercise reasonable diligence to ascertain the whereabouts of the desired party, and this must be shown affirmatively by the holder; but if the indorser has no residence in fact, the reason for requiring diligence for ascertaining the residence then fails, and in such case notice sent to the place where the party is known to be is the best and only evidence which can be given." Knowledge of bank president. If a note is held by a bank and the indorser's address is known to its president, his knowledge binds the bank and due notice of dishonor must be given." Where the signature on the paper is illegible, due presentment or notice becomes sometimes impossible and that fact is then a sufficient excuse; but the notary in such case must make reasonable effort to ascertain the name, and if he misdescribes the party by his own negligence and so fails to give proper notice, the indorser will be discharged.' The excuse is available only to the party who is ignorant of such residence, and hence it is not available to an earlier indorser who knew of it.10 If the holder knows the residence of the party to be notified, the fact that it is unknown to the notary intrusted with the duty of giving notice is no excuse for the failure to give,11 or a delay in giving 12 such N. H. Otis v. Hussey, 3 N. H 346. N. J.-Woodruff v. Daggett, 20 N. J. L. 526. V. Tex.-Seguin Milling, etc., Co. Guinn, (Civ. A.) 137 SW 456. Vt.-Blodgett v. Durgin, 32 Vt. 361. Eng. Baldwin v. Richardson, 1 B. & C. 245, 8 ECL 105, 107 Reprint 91; Bateman v. Joseph, 12 East 433, 104 Reprint 169; Harrison v. Fitzhenry, 3 Esp. 238; Browning v. Kinnear, Gow 81, 5 ECL 879. Can.-Fleming v. McLeon, 39 Can. S. C. 290, 27 CanLTOccNotes [allowing app 37 N. B. 630, 2 EastLR 180]. 2. Fugitt v. Nixon, 44 Mo. 295; Fleming v. McLeod, 39 Can. S. C. 290, 27 CanLTOccNotes 39 [allowing app 37 N. B. 630, 2 EastLR 180]; and cases supra note 1. [a] Illustrations-(1) Where the residence of a party to be notified of the dishonor of a bill of exchange is unknown, the time employed in endeavoring to find the residence or address of the indorser must be deducted, and laches is only imputable to the holder after failure to give notice, where the residence or address has been ascertained. Fugitt v. Nixon, 44 Mo. 295. (2) Where the holder has no knowledge of the indorser's address, it is proper to forward the protest to their agent in a foreign country in order to have the necessary inquiries made and notices of dishonor sent to the proper place; and if, as a consequence of so forwarding the protest and notes to their agent, any necessary delay occurs, the holders are excused in respect to the delay. Fleming v. McLeod, 39 Can. S. C. 290, 27 CanLT OccNotes 39 [allowing app 37 N. B. 630, 2 EastLR 180]. 3. Mulholland v. Samuels, 8 Bush (Ky.) 63. [a] In Kentucky, under the statute, it need only appear that the notary did not know the place of residence, and not that it was not within his power to ascertain such fact by the use of reasonable diligence. Mulholland V. Samuels, 8 Bush 63. 4. La-Porter v. Boyle, 8 La. 170; Miranda v. New Orleans City Bank, 6 La. 740, 26 AmD 493; McLanahan v. Brandon, 1 Mart. N. S. 321, 14 AmD 188. Me.-Hill v. Varrell. 3 Me. 233. Mo.-Linville v. Welch, 29 Mo. 203; Central Nat. Bank v. Levin, 6 Mo. A. 543. N. Y.-Cuyler v. Nellis, 4 Wend. 398. Pa.-Smith v. Fisher, 24 Pa. 222. Tenn.-Nichol v. Bate, 7 Yerg. 305, 27 AmD 505. Tex.-Earnest v. Taylor, 25 Tex. Suppl. 37. Önt.-Leith v. O'Neill, 19 U. C. Q. B. 233. What constitutes due diligence see supra §§ 935-938. 5. Hartford Bank v. Green, 11 Iowa 476; Stiles v. Inman, 55 Miss. 469; Tunstall v. Walker, 10 Miss. 638; Haly v. Brown, 5 Pa. 178; Fleming v. McLeod, 39 Can. S. C. 90, 27 Can LTOccNotes 290. [a] In other words, in order that the holder of an accepted draft may recover thereon against the drawer without protest of the draft, it must be shown either that the acceptor was a nonresident, that he resided in a part of the state that was not to be reached by ordinary process of law, or that his residence was unknown and could not be ascertained by the use of reasonable diligence, and that such condition existed at the time suit should have been brought. Seguin Milling, etc., Co. v. Guinn, (Tex. Civ. A.) 137 SW 456. 6. Tunstall v. Walker, 10 Miss. 638. 7. Central Nat. Bank v. Levin, 6 Mo. A. 543. 8. Manufacturers', etc., Bank v. Hazard, 30 N. Y. 226; Hewitt v. Thomson, 1 M. & Rob. 543. See also supra § 959. 9. McGeorge v. Chapman, 45 N. J. L. 395; Davey v. Jones, 42 N. J. L. 28, 36 AmR 505; Baillie v. Dickson, 7 Ont. A. 759. 10. Beale v. Parrish, 20 N. Y. 407, 75 AmD 414. 11. Aldine Mfg. Co. v. Warner, 96 Ga. 370, 23 SE 404. [a] Thus where it appeared that the notary was ignorant of the indorser's residence, but it did not appear that the holder also was ignorant, want of notice was held not to be excused. Aldine Mfg. Co. v. Warner, 96 Ga. 370, 23 SE 404. 12. Manning First Nat. Bank v. Farneman, 93 Iowa 161, 61 NW 424. [a] Thus, when the holder knows |