necessary for the protection of the drawer or indorser as if presentment had been made.63

65

Diligence on his part is measured by the general convenience of business men. War, disease, the suspension of commercial intercourse by superior force, such as the public and positive prohibition of commerce, occupation of a country by public enemies," and the like, excuse presentment and notice.

In cases of absence, death, or inability to discover the

63 Foster v. Julien, 24 N. Y. 28, 80 Am. Dec. 320; Spies v. Gilmore, 1 N. Y. 321; McGruder v. Bank of Washington, 9 Wheat. 598, 6 L. Ed. 170; Leonard v. Olson, 99 Iowa, 162, 68 N. W. 677, 35 L. R. A. 381, 61 Am. St. Rep. 230; N. I. L. §§ 83, 89; REED v. SPEAR, 107 App. Div. 144, 94 N. Y. Supp. 1007 (N. I. L.), Moore Cases Bills and Notes, 250.

64 Windham Bank v. Norton, 22 Conn. 213, 56 Am. Dec. 397; Patience v. Townley, 2 J. P. Smith (Eng.) 223; Farmers' Bank of Virginia v. Gunnell's Adm'x, 26 Grat. (Va.) 131; Schofield v. Bayard, 3 Wend. (N. Y.) 488. It seems that whether or not reasonable diligence has been shown is a question of law. Vogel v. Starr, 132 Mo. App. 430, 112 S. W. 27 (N. I. L.). See p. 510, supra. But in Brewster v. Shrader, 26 Misc. Rep. 480, 486, 57 N. Y. Supp. 606, 611, in holding that the question was whether or not, under the facts, due diligence had been used in attempting to give notice, the court said: "We think this question was properly submitted to the jury as a question of fact. The question of what is reasonable diligence must be determined with reference to what would have suggested itself as necessary, under the existing circumstances, to a man of ordinary prudence and intelligence." See REED v. SPEAR, 107 App. Div. 144, 94 N. Y. Supp. 1007 (N. I. L.), Moore Cases Bills and Notes, 250.

65 Scholefield v. Eichelberger, 7 Pet. 586, 8 L. Ed. 793; United States v. Grossmayer, 9 Wall. 75, 19 L. Ed. 627; Berry v. Southern Bank of Kentucky, 2 Duv. (Ky.) 379; James v. Wade, 21 La. Ann. 548 (this case holds that the holder of commercial paper must use all other means possible to give notice to the party to be charged when by reason of circumstances the mail cannot be used).

66 Billgerry v. Branch, 19 Grat. (Va.) 393, 100 Am. Dec. 679; Morgan v. Bank of Louisville, 4 Bush (Ky.) 82; Norris v. Despard, 38 Md. 491; Tunno v. Lague, 2 Johns. Cas. (N. Y.) 1, 1 Am. Dec. 141. As holding that the illness of one's wife will not excuse delay in giving notice of dishonor, see Turner v. Leach, Chit. Bills & N. (10th Ed.) 332, note 13.

67 Polk v. Spinks, 5 Cold. (Tenn.) 431, 98 Am. Dec. 426; Tardy v. Boyd's Adm'r, 26 Grat. (Va.) 632.

68

residence of the maker or acceptor, the question is one of diligence. When the maker of a note or acceptor of a bill has absconded, that will ordinarily excuse a demand, and notice of the fact is sufficient to hold all the indorsers.69 Where the maker or acceptor is a seaman on a voyage, having no domicile, the indorser is liable without a demand being made; 70 and in every case where the maker or acceptor has no known place of residence, or place at which the note can be presented, the holder will in like manner be excused from making any demand whatever." The commonest instance of this last general statement is where the maker or acceptor removes from the state, and continues to reside abroad until its maturity. It is deemed in such cases a better business rule that the holder shall not be bound to seek out the maker or acceptor or his place of residence in the state to which he has removed for the purpose of presenting the instrument and demanding payment.72 It is probably also the law that he is not bound to present it at the last known place of residence or business of the maker or acceptor. In such case presentment will clearly be

73

68 If the place of business or residence of the maker, drawee, or acceptor cannot, after reasonable diligence, be ascertained, further diligence to effect presentment is excused. Bateman v. Joseph, 12 East, 433; Freeman v. Boynton, 7 Mass. 483; Collins v. Butler, 2 Strange, 1087; Browning v. Kinnear, 1 Gow, 81. See Hine v. Allely, 4 Barn. & Adol. 624. See, also, Union Bank v. Fowlkes, 34 Tenn. (2 Sneed) 555, 560, 561; Wolfe v. Jewett, 10 La. 383. If payable at a particular place, which no longer exists, presentment is excused. So where such place cannot, after reasonable diligence, be ascertained. See Hutchison v. Crutcher, 98 Tenn. 421, 39 S. W. 725, 37 L. R. A. 89. Erwin v. Adams, 2 La. 318; Waring v. Betts, 90 Va. 46, 17 S. E. 739, 44 Am. St. Rep. 890. As to what is reasonable diligence in making inquiry, see Lambert v. Ghiselin, 9 How. 552, 13 L. Ed. 254; Hutchison v. Crutcher, supra; Daniel, Neg. Inst. §§ 1115–1123.

69 Putnam v. Sullivan, 4 Mass. 45, 3 Am. Dec. 206; Lehman v. Jones, 1 Watts & S. (Pa.) 126, 37 Am. Dec. 455; Taylor v. Snyder, 3 Denio (N. Y.) 145, 45 Am. Dec. 457.

70 Barrett v. Wills, 4 Leigh (Va.) 114, 26 Am. Dec. 315; Moore v. Coffield, 12 N. C. 247.

71 Erwin v. Adams, 2 La. 318; Adams v. Leland, 30 N. Y. 309. 72 Anderson v. Drake, 14 Johns. (N. Y.) 114, 7 Am. Dec. 442.

73 In Dennie v. Walker, 7 N. H. 199, it was held by Upham, J., that "a removal beyond the bounds of the government, after the making

sufficient if made at the last known place of residence or of business.74 In case of death of the maker or acceptor, the general principle which we have stated above governs the case. If the instrument is made payable at a bank or other particular place, it must be still presented there. If its presentment be impossible, because of the death of the maker or acceptor, and no one can be found to whom to make presentment, its presentment will be excused. If a personal representative has been appointed, presentment and demand must be made to him.75 And if there is no personal representative, and at the time of his death the maker or acceptor had a known place of residence, presentment should be made at his former residence.76 In this case, as in all others, the death of the acceptor or maker never dispenses with notice to the drawers and indorsers of the fact of non-acceptance or of non-payment."

of a note, and before it comes due, and where no place of payment of the note is specified, renders a demand upon the maker unnecessary; but this is an exception to the general rule, and must be construed strictly."

74 Adams v. Leland, 30 N. Y. 309; Foster v. Julien, 24 N. Y. 28, 80 Am. Dec. 320; McGruder v. Bank of Washington, 9 Wheat. 598, 6 L. Ed. 170; Dennie v. Walker, 7 N. H. 199; Wheeler v. Field, 6 Metc. (Mass.) 290; Herrick v. Baldwin, 17 Minn. 209 (Gil. 183), 10 Am. Rep. 161; Gist v. Lybrand, 3 Ohio, 308, 17 Am. Dec. 595; Central Bank v. Allen, 16 Me. 41.

75 Magruder v. Union Bank of Georgetown, 8 Curt. Dec. 299, 3 Pet. 87, 7 L. Ed. 612; Toby v. Maurian, 7 La. 493; Harp v. Kenner, 19 La. Ann. 63; Gower v. Moore, 25 Me. 16, 43 Am. Dec. 247; Shoenberger's Ex'rs v. Lancaster Sav. Inst., 28 Pa. 459; ante, p. 488.

76 Bank of Washington v. Reynolds, 2 Cranch, C. C. 289, Fed. Cas. No. 954.

77 Oriental Bank v. Blake, 22 Pick. (Mass.) 208. With respect to notice of dishonor, the inability after reasonable diligence to discover the place of business or residence of the party to be notified at least temporarily excuses the failure to give notice. In Gladwell v. Turner, L. R. 5 Exch. 59, all the parties to the bill were shown to reside in London. On the morning after the dishonor of the bill, the plaintiff, who did not know the residence of the defendant (the drawer), applied to S. for information. The latter was not at home, and the plaintiff did not obtain his information until 5:30 p. m. of the same day. He posted his notice of dishonor after 6 p. m., and it was not received that night. It was held that, under the circumstances, the notice was not too late. If the party to be charged, unknown to

WHEN DUE DILIGENCE TO EFFECT PRESENTMENT, PROTEST, AND NOTICE OF DISHONOR IS DISPENSED WITH

148a. Presentment, protest, and notice of dishonor, or reasonable diligence to effect them, are dispensed with in the case of a drawer or indorser whose duty it is as between himself and the prior parties to the instrument, to pay it at maturity.78

148b. Presentment, protest," or notice of dishonor may be dispensed with by waiver, express or implied.

Where the drawer, through his own fault, has no reason to expect the bill will be paid, his act in drawing the bill is

the holder, changes his place of residence after drawing or indorsing the bill or note, the holder may nevertheless still address the notice to his former place of residence, provided he in good faith supposed he was addressing it to the actual place of residence of such party. See Munn v. Baldwin, 6 Mass. 316; Requa v. Collins, 51 N. Y. 148; Ward v. Perrin, 54 Barb. (N. Y.) 89. In Berridge v. Fitzgerald, L. R. 4 Q. B. 639, a bill was shown to have been drawn on a company, and accepted by the manager. The defendant and another director indorsed. At maturity the bill was not paid, as the affairs of the company were being wound up. The plaintiff did not know the defendant's place of residence, so he sent the notice to him at the company's office. The defendant had for some time ceased to come there, since the company had become embarrassed. The notice was held to be good under the circumstances. In the case of Rawdon v. Redfield, 2 Sandf. (N. Y.) 178, it was shown that at the date of the note the indorser lived in Troy, but before maturity of the note he moved to New York. His name was not in the directory, however, and the notary who protested the bill in New York, being informed by the holder and acceptor, that Troy was the place of residence of the indorser, mailed him a notice to that place. This was held to be sufficient notice. See J. H. Mohlman Co. v. McKane, 60 App. Div. 546, 69 N. Y. Supp. 1046 (N. I. L.); Albany Trust Co. v. Frothingham, 50 Misc. Rep. 598, 99 N. Y. Supp. 343 (N. I. L.). Where no effort is made to find out the correct address, notice of dishonor is, of course, not excused. Fonseca v. Hartman (Sup.) 84 N. Y. Supp. 131 (N. I. L.); E. I. Dupont de Nemour Powder Co. v. Rooney, 63 Misc. Rep. 344, 117 N. Y.

78 2 Ames Cas. Bills & N. 813.

79 See supra, 523.

a very unusual mercantile transaction. In such a case his liability is fixed without the exercise of any diligence to effect presentment and notice of dishonor.80 But it is not necessary that the drawer have funds in the hands of the drawee. Thus presentment and notice are not dispensed

Supp. 220 (N. I. L.); T. F. Smith Co. v. America-Europe Co. (Sup.) 128 N. Y. Supp. 81 (N. I. L.). It is not sufficient diligence merely to look through a city directory. Bacon v. Hanna, 137 N. Y. 382, 33 N. E. 303, 20 L. R. A. 495. Nor is it due diligence for a notary, acting as agent for the holder, to ask only the receiving teller at the holder bank as to the address of an indorser, where there were accessible officers of the bank much more likely to supply such information. Sweet v. Woodin, 72 Mich. 393, 40 N. W. 471. But where a notary made inquiries of several persons as to the post-office address of an indorser, all of whom appeared to possess some information on the subject and expressed the belief that a certain town was the proper address of the indorser, and that town was the nearest town to the indorser's farm, and was a much larger town than the town at which the indorser in fact received his mail, and the notary acted in good faith, a notice of dishonor mailed by him to such town was sufficient. Vogel v. Starr, 132 Mo. App. 430, 112 S. W. 27 (N. I. L. not cited). See N. I. L. § 108 (subd. 1). In Price v. Warner, 60 Or. 7, 111 Pac. 49, 118 Pac. 173 (N. I. L.), it appeared that the person giving notice and the defendant indorser resided in the same place; that the person giving notice went, on the day after dishonor, to the defendant's place of business, and found that he was temporarily absent from the city; that he repeated his visits for four or five days, and, on each day, found him still absent; that after that he saw the defendant and gave him notice. It was held that the defendant was discharged. The decision seems correct, because it was possible to give notice by leaving a message at the place of business of the defendant. But the statement by the court that notice must be given either personally or by mail seems erroneous. See supra, p. 544, note 30.

80 Terry v. Parker, 6 Adol. & E. 502. In this case it was held that if the drawer of a bill of exchange have no effects in the hands of the drawee at the time of drawing the bill, and of its maturity, and have no ground to expect that it will be paid, it is not necessary to present the bill at maturity; and if it be presented two days after, and payment be refused, the drawer is liable. Mobley v. Clark, 28 Barb. (N. Y.) 390; Kinsley v. Robinson, 21 Pick. (Mass.) 327; Caunt v. Thompson, 7 C. B. 400. In Lawrence v. Schmidt, 35 Ill. 440, it was held that notice of dishonor is unnecessary where the drawer of a check payable in money has no funds in bank, except depreciated bank bills which the payee refuses to accept, and the bank refuses to pay in money. But see St. John v. Homans, 8 Mo.