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words do not make the demand a condition precedent to a right of action, but import that the debt is due and demandable immediately, or at least that the commencement of a suit therefor is a sufficient demand. Dominion Trust Co. v. Hildner, 243 Pa. St. 253; Swearingen v. Sewickley Dairy Co., 198 Pa. St. 68; Church. v. Stevens, 56 Misc. (N. Y.) 572. The rule is general, and applies though the maker has made the note for accommodation and this is known to the holder. Hansborough v. Gray, 3 Gratt. 340. For cases arising under the statute, see Farmers' Nat. Bank v. Venner, 192 Mass. 531, 534; Florence Oil Co. v. First Nat. Bank, 38 Colo. 119; Dewees v. Middle States Coal & Iron Co., 248 Pa. St. 202.

Paper payable at a particular place.-The rule adopted generally in the United States was that where a note is made payable at a particular bank or other place, or a bill of exchange is drawn or accepted payable in like manner, it is not necessary in order to recover of the maker or acceptor to aver or prove presentment or demand of payment at such place on the day the instrument became due or afterward. The only consequence of a failure to make such presentment is that the maker or acceptor, if he was ready at the time and place to make the payment, may plead the matter in bar of damages and costs. Hills v. Place, 48 N. Y. 520, 523; Parker v. Stroud, 98 N. Y. 379, 384; Cox v. National Bank, 100 U. S. 713; Wallace v. McConnell, 13 Peters, 136; Lazier v. Horan, 55 Iowa, 77; Insurance Company v. Wilson, 29 W. Va. 543; Lockwood v. Crawford, 18 Conn. 361; Bond v. Storrs, 13 Conn. 416.

Where holder has election.-Where, by the terms of the instrument, the holder has the option to declare the principal sum due upon default in the payment of interest he must prove presentment and notice in order to hold an indorser. Galbraith v. Shepardfi 43 Wash. 698. See also Bardsley v. Washington Mill Co., 54 Wash. 553.

Place of contract.—Where a draft is drawn in another state, by one residing there, upon a person residing in New York, any legal question in reference to presentation and demand for payment is to be determined by the laws of New York. Sylvester v. Crohan, 138 N. Y. 494; Hibernia Bank v. Lacomb, 84 N. Y. 367. As to presentment of a bill drawn in New York upon a

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person doing business in a foreign country, see Amsinck v. Rogers, 189 N. Y. 252.

Where indorser holds security.-The fact that the indorser holds security to indemnify him against loss upon his indorsement does not dispense with the necessity for presentment for payment and notice of dishonor. First Nat. Bank of Binghamton v. Baker, 163 App. Div. (N. Y.) 72; Whitney v. Collins, 15 R. I. 44.

§ 71. Where not payable on demand-where payable on demand. Where the instrument is not payable on demand, presentment must be made on the day it falls due. Where it is payable on demand, presentment must be made within a reasonable time after its issue, except that in the case of a bill of exchange, presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof.

Variant readings.-In Nebraska all after the word "issue" in the second sentence is omitted. In Vermont the words "its issue in order to charge the drawer" are substituted for the words "last negotiation thereof."

Changes made by the statute. This section changed the law of New York, which prior to the statute was, that a promissory note payable on demand with interest was a continuing security, on which an indorser remained liable until an actual demand, and the holder was not chargeable with neglect for omitting to make such demand within any particular time. Merritt v. Todd, 23 N. Y. 28; Pardee v. Fish, 60 N. Y. 265; Herrick v. Wolverton, 41 N. Y. 581; Wheeler v. Warner, 47 N. Y. 519; Crim v. Starkweather, 88 N. Y. 339; Parker v. Stroud, 98 N. Y. 379, 385; Shutts v. Fingar, 100 N. Y. 541. The object intended to be accomplished by the statute was to do away with the distinction between notes, or bills, payable on demand, which Merritt v. Todd had created, and to leave the question of their reasonable presentment for payment, in order to charge the parties to them, as one for the determination of the court upon the facts. Commercial Nat. Bank v. Zimmerman, 185 N. Y. 310. In Connecticut, prior to the Negotiable Instruments Law, promissory notes payable on demand were

required to be presented within four months. Connecticut General Statutes, p. 405. But the later statute restores the rule of the common law as it formerly existed in that state. Hampton v. Miller, 78 Conn. 267, 271-272. A similar rule prevailed in Minnesota (Minnesota statutes [1891], section 2104). In Massachusetts and Vermont demand notes were overdue in sixty days. Merritt v. Jackson, 181 Mass. 67; Paine v. Central Vermont R. R. Co., 118 U. S. 152. As to a note payable on demand, "with interest semi-annually," see Hayes v. Werner, 45 Conn. 252.

Reasonable time—What is.-One of the most difficult questions presented for the decision of a court is, what shall be deemed a reasonable time within which to demand payment of the maker of a note payable on demand, in order to charge the indorser. It depends upon so many circumstances to determine what is a reasonable time in a particular case, that one decision goes but little way in establishing a precedent for another. Seavor v. Lincoln, 21 Pick. 267. If the facts are disputed and the testimony conflicting, the question is a mixed one of law and fact, to be decided by the jury, under the instructions of the court, but where the facts are not in dispute the question is one of law. Commercial Nat. Bank v. Zimmerman, 185 N. Y. 310; German Am. Bank v. Mills, 99 App. Div. (N. Y.) 312; In re Philpott's Estate, 151 N. W. Rep. (Iowa) 825; Guild v. Goldsmith, 9 Fla. 212.

Decisions under the statute.-Under this section it has been held that a note payable on demand should be treated as due four months after its date. Frazee v. Phoenix Nat. Bank, 161 Ky. 175. The court said: "The question is under the terms and the spirit of the act, when should there have been a presentment for payment and notice of dishonor. It is a matter of common knowledge that in the banks of central Kentucky commercial paper is rarely permitted to run longer than four months without renewal. It may be said to be a custom or usage of trade that such paper is ordinarily payable within that time, and being the usage of trade, this note should have been treated as due at least on the 20th day of December, 1908." In Massachusetts it is held, under this section, that in the absence of any evidence to show a usage of trade or business to the contrary, a demand note must be presented within sixty days in order to hold an indorser. Merritt v. Jackson, 181 Mass. 67.

Paper overdue. As by section 7 an instrument negotiated when overdue is payable on demand, the requirement of section 71 is applicable in such cases. In theory paper indorsed when overdue is equivalent to a bill of exchange drawn on the party primarily liable, payable at sight. In this theory the necessity of demand and notice is an essential element; not notice on a given day, as in the case of a maturing note, possible in that case, but impossible in the other, for the day appointed by the former maker and the new acceptor has passed; but notice after the holder has had reasonable time to make the demand on the maker, and has employed that time with diligence. Tyler v. Young, 30 Pa. St. 143, 144; Leidy v. Tammany, 9 Watts, 353; Guild v. Goldsmith, 9 Fla. 212.

Request of indorser.-A note, presented in accordance with the request or assent of the indorser, is, as to him, presented in a reasonable time. Oley v. Miller, 74 Conn. 304, 308.

On demand after date.-A note payable "on demand after date" is a demand note, and not one payable on a fixed day, and hence, it need only be presented for payment within a reasonable time. Schlesinger v. Schultz, 110 App. Div. (N. Y.) 356.

Demand with tender.-Where a note is payable "on demand and upon security given," the making of a demand accompanied by a tender of the securities is not a condition precedent to the maintenance of an action to recover upon the note, but it is sufficient for the plaintiff to produce and tender the note and the securities upon the trial. Spencer v. Drake, 84 App. Div. (N. Y.) 272. As to corporate bonds and coupons, see Williamsport Gas Co. v. Pinkerton, 95 Pa. St. 62.

Pleading. The defense that the paper was not presented within a reasonable time after its issue need not be specially pleaded by an indorser; for, since the obligation of the indorser is conditional upon all the steps having been taken by the holder which the statute has prescribed as to presentment and as to notice of non-payment, the burden is on the holder to prove due and timely presentment. Commercial Nat. Bank v. Zimmerman, 185 N. Y. 210. The case last cited overrules German Am. Bank v. Mills, 99 App. Div. (N. Y.) 312, 315, where it was held that this section of the Negotiable Instruments Law creates a statute of limita

tions which must be pleaded. For other cases applying the statute, see Schlesinger v. Schultz, 110 App. Div. (N. Y.) 356; Citizens' Bank v. First Nat. Bank, 135 Iowa, 685.

Rule where check is negotiated.-The provision of this section, that in the case of a bill presentment may be made within a reasonable time after the last negotiation thereof, applies to the indorser of a check. Columbian Banking Co. v. Bowen, 134 Wis. 218. In the case cited the court said: "Keeping in mind that the discharge from liability above referred to because of unreasonable delay after the issuance of a check in presenting it for payment, is of the drawer only, and that this action is against the payee who indorsed the instrument in question without qualification and put it in circulation, we turn to section 1678-1, which provides, as to a bill of exchange payable on demand, which from the foregoing obviously includes a check or draft on a bank of the character of the one in question, 'presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof.' From the foregoing it seems plain that, as regards the payee of such an instrument as we have here, who puts the same in circulation with his unqualit'ed indorsement thereon, and all subsequent parties thereto so indorsing the same, presentment for payment is sufficient, as regards their liability, if made within a reasonable time after the last negotiation. A bill of exchange payable on demand, regardless of its character, put in circulation, so long as its circulating character is preserved may be outstanding without impairing the liability of indorsers thereof. Formerly, the length of time within which a bill of exchange might circulate without impairing such liability was more or less uncertain, rendering it very difficult to determine any one case by the decision in another. That difficulty was removed, so far as practicable, by the provision that only the time need be considered intervening between the last negotiation and the presentment. That is recognized as a radical change in the law as it formerly existed." See also Singer Manufacturing Co. v. Summers, 143 N. C. 103; Citizens' Nat. Bank v. First Nat. Bank, 135 Iowa, 605; Plover Savings Bank v. Moodie, 135 Iowa, 685. In the case last cited it was said: "The checks were negotiated by the appellee to the Des Moines Savings Bank, and under the statute already quoted (Code Supp. 1902, §§ 3060a-71), reasonable time for presentation and demand is to be reckoned from the last negotiation

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