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the State until after the maturity or the note, dispenses with the necessity of presentment in order to charge the indorser.28 The rule in other States is to the effect that where a maker removes permanently from the State prior to the maturity of the note, the holder is bound to demand payment at the maker's last place of residence or business within the State, if he can find it by the use of due diligence.29 The statute provides that in any other case, that is, where no place is specified, no address of the principal debtor is given, and such debtor has no present place of business or residence, the presentment may be made upon him wherever he can be found, or at his last known place of business or residence.30 This evidently disposes of any question which may arise as to the sufficiency of presentment to bind the indorser, where made at the last known place of business or residence of a maker or acceptor who has departed from the State, but does not apparently affect the question of whether presentment and demand are entirely excused.

§ 94. Instrument must be exhibited.

The Negotiable Instruments Law contains the following provision: "The instrument must be exhibited to the person from "whom payment is demanded, and when it is paid must be de"livered up to the party paying it." 31 This section of the statute is evidently declaratory of the common-law rule. A presentment and demand of payment must be made of the acceptor personally, and no such presentment can be made unless the person presenting it has the bill or note in his possession at the time.32 The reason for the rule that a personal presentment of the in

whether, under such circumstances, presentment and demand are not entirely excused, seems not altogether free from doubt."

30. Neg. Inst. L. (N. Y.), § 133

(4).

31. Neg. Inst. L. (N. Y.), § 134. For the same section in statutes of other States see Appendix.

28. Foster v. Julien, 24 N. Y. 28, 80 Am. Dec. 320; Taylor v. Snyder, 3 Den. (N. Y.) 145; Magruder v. Bank of Washington, 9 Wheat. (U. S.) 598, 6 L. Ed. 170; Gist v. Lybrand, 3 Ohio, 307, 17 Am. Dec. 595. 29. Wheeler V. Field, 6 Metc. (Mass.) 290. In the case of Herrick v. Baldwin, 17 Minn. 209, 10 Am. Rep. 161, the court said: "The rule ap32. Musson v. Lake, 4 How. (U. S.) pears to be, that when a note is made 262; Nailor v. Bowie, 3 Md. 251; by a resident of a State, who before its Arnold v. Dresser, 8 Allen (Mass.), maturity removes from such State and 435; Fall River Union Bank v. Wiltakes up a permanent residence else- lard, 5 Metc. (Mass.) 216; Shaw v. where, it is sufficient to present the Reed, 12 Pick. (Mass.) 132; Etheridge note for payment at the maker's last v. Ladd, 44 Barb. (N. Y.) 69; Verplace of residence in the State from gennes Bank v. Cameron, 7 Barb. (N. which he has so removed. Though Y.) 143.

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strument should be made to the party liable to pay it, is that he may judge of the genuineness of the instrument and of the right of the holder to receive the contents, and that upon paying the amount he may obtain immediate possession of the instrument.3 While the maker of a note is entitled, upon demand for payment, to have the note exhibited to him, yet if he does not ask to see the note and refuses to pay it on other grounds, this is a sufficient presentment to bind the indorser.34 It is assumed that the statute has not affected the application of this rule. It is probable that the exhibition of the instrument may be waived, and if the maker of a note or the acceptor of a bill refuses to pay it upon other grounds, then the failure to duly present it will, even under the statute, constitute a sufficient waiver, and the indorser will be bound thereby. None of the cases, however, go to the extent of holding that a presentment would be deemed sufficient, although the person making it did not have the instrument in his possession. If the instrument has been lost or destroyed, a presentment of a copy with an offer of indemnity for the protection of the maker or acceptor will be sufficient.35

33. Musson v. Lake, 4 How. (U. S.) 262, 274. The court in this case also said: "And the acceptor has a right to see that the person demanding payment has a right to receive it before he is bound to answer whether he will pay it or not, for notwithstanding his acceptance it may have passed into other hands before its maturity. And he, as well as the drawee, has a right to the possession of the bill upon paying it, to be used as a voucher in the settlement of accounts with the drawer." See also Vergennes Bank v. Cameron, 7 Barb. (N. Y.) 143.

well understood of what note payment was demanded. He was there to demand payment of the note in suit, and plainly manifested his purpose, and the person of whom payment was asked understood what he desired. This was sufficient. Such demand, refusal, or omission to pay, with immediate personal notice thereof to the indorser, fixed and determined his liability, and he was thus bound to its absolute payment without a repetition of those formalities." In the case of Waring v. Betts, 90 Va. 46, 17 S. E. 739, 44 Am. St. Rep. 890, it was held that if, on 34. Instrument not exhibited but demand for payment of a note, an payment refused on other grounds. exhibition of the instrument is not Legg v. Vinal, 165 Mass. 555, 43 N. E. asked for, and the party on whom the 518. See also King v. Crowell, 61 Me. demand is made declines to pay on 244; Lockwood v. Crawford, 18 Conn. other grounds, a formal, actual pre361; Porter V. Thom, 167 N. Y. sentment of the instrument is waived. 584, 60 N. E. 1119. In the case of And in the case of Gilbert v. Dennis, Etheridge v. Ladd, 44 Barb. (N. Y.) 3 Metc. (Mass.) 495, 38 Am. Dec. 329, 69, 72, the court said: "The holder it was held sufficient to constitute a may demand at the proper place the place of payment named in the notice of the person who then had charge of the store, being the only person in charge. He had the note with him, and although he did not exhibit it, yet he so described it as to leave no doubt but that the maker, if present, would have

demand and refusal to pay a note, that the maker, on the day it becomes due, calls on the holder at his store, where the note is, and informs him that he cannot pay it and desires him to give notice to the indorser, though the note itself is not produced.

35. Hinsdale v. Miles, 5 Conn. 331.

§ 95. Presentment where instrument is payable at a bank.

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a. Statutory provision.- The Negotiable Instruments Law provides: "Where the instrument is payable at a bank, presentment must be made during banking hours, unless the person to make payment has no funds there to meet it at any time "during the day, in which case presentment at any hour before "the bank is closed on that day is sufficient." 36

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b. Presentment at bank generally. As has already been said, where an instrument specifies the place of payment such place is a proper place for presentment. Where, therefore, an instrument is made payable at a specified bank, presentment must be there made to charge the indorser, unless an excuse exists for not doing so. If a note is payable at a certain bank it is sufficient to charge the indorser if the note is there at maturity, to be delivered if paid, and a special demand of payment is unnecessary.89 If an instrument is made payable at any bank in a certain city it is sufficient demand on the maker to charge the indorser if the instrument is presented for payment at any bank within such city, and it is unnecessary to notify the maker at which bank presentment is to be made.40 A presentment for

In the case of Arnold v. Dresser, 8 Allen (Mass.), 435, the court said: "But no valid presentment and demand can be made by any person without having the note in his possession at the time, so that the maker may receive it in case he pays the amount due, unless special circumstances, such as the loss of the note or its destruction, are shown to excuse its absence." In the case of Garthwaite v. Bank of Tulare, 134 Cal. 237, 66 Pac. 326, a check was paid by the drawee on a forged indorsement, and it was held that a subsequent verbal demand of payment by the payee was good without a physical presentation of the check the possession of the check by the drawee being sufficient.

36. Neg. Inst. L. (N. Y.), § 135. For the same section in statutes of other States see Appendix.

37. See § 93 (b), ante, p. 453. 38. People's Bank v. Keech, 26 Md. 521, 90 Am. Dec. 118; Shaw v. Reed, 12 Pick. (Mass.) 132; Arnold v. Dresser, 8 Allen (Mass.), 435; Apperson v. Bynum, 5 Coldw. (Tenn.) 341.

39. When note is at bank where payable.- Hildeburn v. Turner, 5 How.

(U. S.) 69, 12 L. Ed. 54; Bank of the Metropolis v. Brent, Fed. Cas. No. 900, affd. in 1 Pet. (U. S.) 84, 7 L. Ed. 65; North Bank v. Abbott, 13 Pick. (Mass.) 465, 25 Am. Dec. 334; Woodbridge v. Brigham, 13 Mass. 556; Berkshire Bank v. Jones, 6 Mass. 524, 4 Am. Dec. 175; Ogden v. Dobbin, 2 Hall (U. S. Sup.), 112; Remington v. Harrington, 8 Ohio, 507. In the case of Chicopee Bank v. Phil. Bank, 8 Wall. (U. S.) 641, 19 L. Ed. 422, a bill payable at a bank was sent to the bank in a letter, and the postman laid it upon the cashier's desk, but it slipped through a crack and was not discovered until after the date of its maturity. It was held that the fact that the bill was thus really in the bank is not sufficient to constitute a valid presentment.

40. Boit v. Corr, 54 Ala. 112; Allen v. Avery, 47 Me. 287; Langley v. Palmer, 30 Me. 467, 50 Am. Dec. 634; Way v. Butterworth, 108 Mass. 509; Hampden Fire Ins. Co. v. Davis, 13 Gray (Mass.), 156; Walden Bank v. Baldwin, 13 Gray (Mass.), 154, 74 Am. Dec. 627; North Bank v. Abbott, 13 Pick. (Mass.) 465, 25 Am. Dec. 334.

payment to the cashier of a bank outside of the office or the place of business of the bank is insufficient to bind the indorser, where by the terms of the instrument it is made payable at the bank.11 If prior to the maturity of the instrument the bank where it is made payable has ceased to transact business, and another bank is doing business at the same place, a presentment at such place will be sufficient.12

c. Presentment during business hours. The above section of the statute requires a presentment to be made of an instrument payable at a bank during the regularly established banking hours of such bank. This applies generally where it is shown that the person liable upon the instrument has funds at the bank sufficient to meet the payment of the note. The maker of a note or the acceptor of a bill has until the close of the banking hours of the day of the maturity of the instrument to deposit the money for the payment thereof;43 the instrument must, therefore, remain at the bank until the close of banking hours.** It has been held that the rule that when a note or bill is payable at a bank or at a banker's, it must be presented within business hours, is subject to the qualification that if presented after that time, while any of the officers are present to give an answer at the time of the demand, it will be sufficient;

Presentment at trust company. Nash v. Brown, 165 Mass. 384, 43 N. E. 180, was where an action was brought upon a promissory note made "payable at any bank in Boston." The note was presented for payment at the office of the Massachusetts Loan and Trust Company in Boston, and was duly protested by a notary public for nonpayment. The question was whether such a trust company was a bank, as that word was used in the note. The court said: "We assume that the trust company has the power to discount commercial paper, and to perform many other acts which banks of issue and deposit usually perform. But our statutes make a distinction between trust companies organized under our laws, and banks, and we are not aware that such trust companies are commonly called banks, or that there is any well-established custom to present promissory notes and bills of exchange payable at a bank to such trust companies for payment.

but under the statute and in ac

ion that the presentment at the office of the trust company is not sufficient to charge an indorser on the note."

41. Peabody Ins. Co. v. Wilson, 29 W. Va. 528, 2 S. E. 888.

42. Roberts v. Mason, 1 Ala. 373; Central Bank v. Allen, 16 Me. 41. In the case of Waring v. Betts, 90 Va. 46, 17 8. E. 739; 44 Am. St. Rep. 890, it is held that although a note is made payable at a bank, presentment and demand for payment at the bank within banking hours is excuse if the bank had 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 in the afternoon is sufficient to charge him.

43. Church V. Clark, 21 Pick. (Mass.) 310; Harrison v. Crowder, 14 Miss. 464, 14 Am. Dec. 290.

44. Planters' Bank v. Marlcham, 6 Miss. 397, 37 Am. Dec. 162. But see Thorpe v. Peck, 28 Vt. 127. The 45. 1 Parsons on Notes and Bills, present act discloses no evidence of pp. 418, 419; Reed v. Wilson, 1 N. J. any such custom. We are of the opin- L. 29.

cordance with the weight of authority, presentment must be made during banking hours, unless the person required to pay the instrument has no funds at the bank to meet it, at any time during the day. Where such person is without funds at the bank, the presentment will be sufficient to bind the indorser, if it be made at any time before the bank is actually closed and while some person having authority is at the bank upon whom the presentment can be made.46

§ 96. Presentment where principal debtor is dead.

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The Negotiable Instruments Law provides: "Where the per66 son 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." 47 The rule of the statute is supported by the authorities. It has been declared that when the maker of a note dies, before it becomes payable, the holder should make inquiry of his personal representative, if there be one, to present the note on its maturity to him for payment.48 The presentment to the personal representative of the deceased must be made notwithstanding the fact that the indorser and the personal representative are one and the same person.49 If there be no personal representative, demand for payment should be made at the former dwellinghouse or place of business of the deceased.50

§ 97. Presentment to persons liable as partners.

a. Statutory provision.- The Negotiable Instruments Law provides that: "Where the persons primarily liable on the instru"ment are liable as partners, and no place of payment is speci

46. Allen v. Avery, 47 Me. 287; Shepherd v. Chamberlain, 8 Gray (Mass.), 225; Cohea v. Hunt, 10 Miss. 227, 41 Am. Dec. 589; Oothout v. Ballard, 41 Barb. (N. Y.) 33. A note was made payable at a bank and was presented fifteen minutes after banking hours in the usual course of business; it was held a sufficient presentment. Bank of Utica v. Smith, 18 Johns. (N. Y.) 230. 47. Neg. Inst. L. For the of other

§ 136.

statutes

pendix.

same

(N. Y.), section in States see Ap

48. Gower v. Moore, 25 Me. 16. In this case it is also held that the knowledge of the indorser that the note would not be paid on presentment, that the maker had died, and his estate was insolvent, would not relieve the holder from his obligation to make the presentment and give due notice of its dishonor.

49. Magruder v. Union Bank, 3 Pet. (U. S.) 87.

50. Washington Bank v. Reynolds, Fed. Cas. No. 954, 2 Cranch (U. S.), 289; Hoff v. Hatch, 2 Disney (Ohio), 63.

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