Proof of special agreement.-See Morrison Lumber Co. v. Lookout Mt. Hotel Co., 92 Tenn. 6; Bank of Jamaica v. Jefferson, 92 Tenn. 537; Reinhart v. Schall, 69 Md. 352; Hale v. Danforth, 46 Wis. 554; Witherow v. Slaybach, 158 N. Y. 649; Patch v. Washburn, 82 Mass. 82; Breneman v. Furniss, 90 Pa. St. 186. Evidence to show an agreement for a joint liability; Easterly v. Barber, 66 V. Y. 433; Phillips v. Preston, 5 How. (U. S.) 278; Edelen v. White, 6 Bush. 408; contra, Johnson v. Ramsay, 43 N. J. Law, 279. Evidence to show contract that one was to be prior indorser. Slack v. Kirk, 67 Pa. St. 380; Reinhart v. Schall, 69 Md. 352; Slagel v. Rust, 4 Gratt. 274. For a case where relief given in equity where order of indorsers changed on renewal of note without consent of one; see Slagel v. Rusts' Admr., 4 Gratt. 274. The statute has changed the law in New Jersey. Morgan v. Thompson, 72 N. J. L, 244, 246.

Agreement inferred from circumstances. To overcome the prima facie presumption created by this section it is not necessary that there shall be proof of an actual formal contract in so many words; but it is sufficient if, taking all the circumstances into account, the nature of the liability appears, which as between themselves the indorsers intended to assume. Weeks v. Parsons, 179 Mass. 570, 575; Clapp v. Rice, 13 Gray, 403; Hagerthy v. Phillips, 83 Me. 336; MacDonald v. Whitfield, L. R. 8 App. Cas. 733. Thus, where the members of a stranded theatrical company indorsed a note for the purpose of raising money to enable them to get home, and all were equally benefitted, a prior indorser who had been compelled to pay the note was held to be entitled to contribution from the other indorsers. George v. Bacon, 138 App. Div. (N. Y.) 208. So, where the stockholders of a corporation indorsed a note to enable the corporation to continue in business, it was held that they were, as among themselves, equally liable, though there was no proof of an agreement to that effect. Trego v. Cunningham's Estate, 267 Ill. 367.

Parol evidence.-Under this section the agreement of the indorsers as to their liability respecting one another may be shown by parol. Wilson v. Hendee, 74 N. J. L. 640; Hunter v. Harris, 63 Ore. 505; Noble v. Breemen-Spaulding Co., 65 Ore. 93; Goldman v. Goldberger, 208 Fed. Rep. 877. Thus, in an action brought by one indorser of a note against one of the two other indorsers, the defendant was allowed to show that the indorsements were for ac

commodation, and that by an oral agreement among the indorsers his liability was in no event to exceed one-third of the amount at any time due on the note. Shea v. Vahey, 215 Mass. 80. See also Union Bank v. Sullivan, 214 N. Y. 332. And the rule which permits the receipt of parol evidence to determine the question of liability as between those who are secondarily liable applies to the drawer of a bill. Haddock, Blanchard & Co. v. Haddock, 192 N. Y. 499. In the case last cited the court said: "As we have seen, upon the acceptance of the bill the acceptor becomes the principal debtor and the one primarily liable to pay the amount of the bill, and all other parties to the instrument, including the maker and indorser, are secondarily liable. We are of the opinion that the maker [drawer] of the bill is in legal effect and within the intention of this section an indorser, and that as between the plaintiff and the defendant, parol evidence is authorized to determine the liability as between them."

Joint payee indorsing. This provision changes the law. Prior to the statute joint payees who indorsed were liable only jointly. Lane v. Stacy, 8 Allen, 41; Daniel on Negotiable Instruments, section 704.

Suit against one joint indorser.-Under this section, an action lies against one joint indorser without joining the others. Hodgens v. Jennings, 148 App. Div. (N. Y.) 879.

§ 69. Liability of agent or broker. Where a broker or other agent negotiates an instrument without indorsement, he incurs all the liabilities prescribed by section sixty-five of this act, unless he discloses the name of his principal, and the fact that he is acting only as agent.

Variant readings.-In Illinois a new section is interpolated at this place as 69a. "Whenever any bill of exchange drawn or indorsed within this state and payable without this state, is duly protested for non-acceptance or non-payment, the drawer or indorser thereof, due notice being given of such non-acceptance or non-payment, shall pay such bill at the current rate of exchange and with legal interest from the time such bill ought to have been paid until paid, together with the costs and charges of protest,

and on bills payable in the United States in case suit has to be brought thereon and on bills payable without the United States with or without suit, five per cent. damages in addition."'

Rule at Common law.-See Meriden National Bank v. Gallaudet, 120 N. Y. 289; Cabot Bank v. Morton, 4 Gray, 156; Worthington v. Cowles, 12 Mass. 30.

ARTICLE VII.

PRESENTMENT FOR PAYMENT.

Section 70. When presentment necessary-effect of failure to present.

71. Where not payable on demand-where payable on demand.

72. What constitutes a sufficient presentment. 73. Place of presentment.

74. Instrument must be exhibited.

75. Presentment where instrument payable at bank.

76. Where person primarily liable is dead. 77. Presentment to persons liable as partners. 78. Presentment to joint debtors.

79. When presentment not required to charge the drawer.

80. When presentment not required to charge the indorser.

81. When delay in making presentment is excused.

82. When presentment may be dispensed with. 83. When instrument dishonored by non-pay

ment.

84. Right of recourse to parties secondarily liable.

85. Time of maturity.

86. How time computed.

87. Instrument payable at bank-effect of.
88. What constitutes payment in due course.

§ 70. When presentment necessary-effect of failure to present.-Presentment for payment is not necessary in order to charge the person primarily liable on the instrument; but if the instrument is, by its terms, payable at a special place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender of payment upon his part. But except as herein otherwise provided, presentment for payment is necessary in order to charge the drawer and indorsers.

Variant readings.-In Illinois the words "except in case of bank notes" are interpolated after the words "primarily liable" on the instrument." In Wisconsin all after the words "primarily liable" in the first sentence to the end of that sentence are omitted. In the New York Statute the words "and has funds there available for that purpose" after the word "maturity" in the first sentence, were interpolated by Laws N. Y. 1898, chap. 336. They seem to be superfluous. It is difficult to see how a man can be able to pay, unless he has the funds with which to make payment. Besides, if taken literally, they impose a condition not deemed necessary by the courts. If, for example, the "special place" where the paper is payable is the office of the maker or acceptor, this provision requires that he have the funds there, and it would not be enough that he have them in bank. The interpolation is not only at variance with the decisions on the subject, but is contrary to good sense, and to the practice of the business world. The change was made without the knowledge of the Commissioners on Uniformity of Laws. It affords a good illustration of the absurdities likely to result from legislative "tinkering." The same change has been made in Kansas and Ohio.

Liability of maker or acceptor.-The rule was well established that presentment was not necessary to charge the maker or acceptor. See Wright v. Vermont Ins. Co., 164 Mass. 302; Payson v. Whitcomb, 15 Pick. 212; Howard v. Boorman, 17 Wis. 459; Rumball v. Ball, 10 Md. 38; Frampton v. Coulson, 1 Wils. 33; Norton v. Ellam, 2 M. & W. 461; Hills v. Place, 48 N. Y. 520; Bush v. Gilmore, 45 App. Div. (N. Y.) 89. And this was so though the paper was by its terms payable "upon demand," for these