§ 82. When presentment may be dispensed with.Presentment for payment is dispensed with:

1. Where after the exercise of reasonable diligence presentment as required by this act cannot be made; 2. Where the drawee is a ficitious person;

3. By waiver of presentment express or implied.

Reasonable diligence-Burden of proof.-The burden is upon the holder to show that due diligence was used. Eaton v. McMahon, 42 Wis. 484.

Duty to inform notary.-It is the duty of a holder to give the notary information as to the residence of the drawer and indorser; and if this is unknown to the holder, he must inquire of those whose names are upon the note or bill as to the residence which he does not know. If there are none such, he must use due diligence to ascertain them. It will not do for the holder to put the note or bill in the hands of the notary at the place where it was drawn without furnishing him any information as to the residence of the maker, or that of the indorser, and then for the notary, without inquiry from him, to return the note without demand or notice. The holder is, of all persons, the one most likely to know the place of residence of those to whom he looks for payment, and due diligence requires that he should give the information to his agent, whom he employs to make demand from the maker and give notice to the indorser; or, if he neglects to do so, that the agent should inquire of him where the parties reside. Smith v. Fisher, 24 Pa. St. 222.

Question of law or fact.-When the facts are undisputed, the question of diligence is for the court. Smith v. Fisher, 24 Pa. St. 222; Wheeler v. Field, 6 Metc. 290.

Insolvency of maker or acceptor.-Presentment is not dispensed with by the insolvency of the maker or acceptor. Reincke v. Wright, 93 Wis. 368; Hawley v. Jette, 10 Oregon, 31; Bensonhurst v. Wilby, 45 Ohio St. 340; Jackson v. Richards, 2 Caines, 343; Armstrong v. Thurston, 11 Md. 148.

Waiver. The waiver may be made either during the currency of the note or after its maturity. Power v. Mitchell, 7 Wis. 161. And evidence of contemporaneous facts and circumstances, at the

time of the transaction, may be shown in evidence, in order to ascertain whether or not a waiver was intended. Baumeister v. Kuntz, 53 Fla. 340. The waiver may be made either verbally or in writing. Smith v. Lownsdale, 6 Oregon, 78. Nor is it necessary that the waiver should be direct and positive. It may result from implication and usage, or from any understanding between the parties which is of a character to satisfy the mind that a waiver is intended. Cady v. Bradshaw, 116 N. Y. 188, 191. The waiver must be clearly established, however, and will not be inferred from doubtful or equivocal acts or language. Ross v. Hurd, 71 N. Y. 14; Worley v. Johnson, 60 Fla. 295. But any language is sufficient, which is calculated to induce the holder to forbear taking the necessary steps to charge the indorser. Torbert v. Montague, 38 Colo. 325; Moyer & Brothers' Appeal, 87 Pa. 129; Boyd v. Bank of Toledo, 32 Ohio St. 526; Worley v. Johnson, 60 Fla. 295. Where the indorser requests the holder to extend the time of payment and promises to let his name remain on the instrument, this will amount to a waiver of presentment and notice of non-payment. Cady v. Bradshaw, 116 N. Y. 188, 191, 192. So, a telegram sent to the collecting bank requesting it to pay the note and save protest and draw, in reply to an inquiry made of the firm by such bank, is a sufficient waiver. Seldner v. Mount Jackson National Bank, 66 Md. 488. So, where an indorser admits his liability at the time of the maturity of the note and accompanies such admission with an offer to arrange the matter" with the holders, and thereafter by his conduct shows that he regards himself as liable, and asks for indulgence. Moyer & Brothers' Appeal, 87 Pa. St. 129. So, where a note a short time before the day of its maturity, is presented to an indorser, and the latter then promises that if the note is suffered to run he will pay it whenever payment is called for. Hale v. Danforth, 46 Wis. 554. So, where, in response to inquiry by the holder, the indorser told him that it would be of no use to call upon the maker. Barker v. Parker, 6 Pick. 80. And so, where the president of a corporation who was an indorser upon its note participated in the act which made it impossible for the corporation to pay. O'Bannon Co. v. Curran, 129 App. Div. (N. Y.) 96. As to waiver where the maker has transferred all his property to the indorsee, see Brandt v. Mickle, 26 Md. 436; Mechanics' Bank v. Griswold, 7 Wend. 165; Moore v. Alexander, 63 App. Div. (N. Y.) 100; Brown v. Maffey, 15 East. 222; Bond v. Farnham, 5 Mass. 170. For cases construing waivers see Parr v. City Trust Company, 95 Md. 291,

300-301; Toole v. Crafts, 193 Mass. 110; Baumeister v. Kuntz, 53 Fla. 340.

Statute of Frauds.—An agreement to waive demand and notice is not within the statute of frauds; it is not a new contract, but only a waiver, absolutely or in part, of a condition precedent to liability. Taunton Bank v. Richardson, 5 Pick. 436; Barclay v. Weaver, 19 Pa. St. 396; Power v. Mitchell, 7 Wis. 159, 166.

Consideration.-From the nature of the indorser's contract no new consideration is required to support the waiver given before or after the maturity of the paper. Burgettstown Nat. Bank v. Nill, 213 Pa. St. 456.

Pleading. The facts constituting the waiver must be specifically pleaded. Galbraith v. Shepard, 43 Wash. 698. And proof of waiver may not be given under an allegation of due presentment. Baer v. Hoffman, 150 App. Div. (N. Y.) 473.

Necessity for waiver of presentment.-As the indorser is liable only upon two distinct conditions, viz.: (1) That due presentment be made and (2) that due notice of dishonor be given, a waiver of the one is not a waiver of the other. Hall v. Crane, 213 Mass. 326; Berkshire Bank v. Jones, 6 Mass. 524; Low v. Howard, 11 Cush. 268, 270; Baer v. Hoffman, 150 App. Div. (N. Y.) 473. But see section 111.

§ 83. When instrument dishonored by non-payment. -The instrument is dishonored by non-payment when: 1. It is duly presented for payment and payment is refused or cannot be obtained; or

2. Presentment is excused and the instrument is overdue and unpaid.

§ 84. Right of recourse to parties secondarily liable. -Subject to the provisions of this act, when the instrument is dishonored by non-payment, an immediate right of recourse to all parties secondarily liable thereon, accrues to the holder.

Nature of liability.-When the indorser's liability has been fixed by demand and notice of dishonor, he becomes an independ

ent and principal debtor, and does not stand in the position of a mere surety. Curtis v. Davidson, 215 N. Y. 395; German-American Bank v. Niagara Cycle Co., 13 App. Div. (N. Y.) 450; First Nat. Bank v. Wood, 71 N. Y. 405, 411.

Where paper secured by collaterals.-Though the holder has received collateral from the maker, the law implies no contract to proceed on the collaterals before suing the indorser. Buck v. Freehold Bank, 37 N. J. Law, 307.

Conditional guaranties.-The section does not change the law as to conditional guaranties, as, for example, a guaranty of the collectibility of the instrument, in which case there is no right of recourse against the guarantor until the holder has first made proper effort to collect from the principal debtor, for in such case the terms of the express contract exclude the idea of an intention to incur the liability prescribed by the statute. Cowles v. Peck, 55 Conn. 251; Summers v. Barrett, 65 Iowa, 292.

§ 85. Time of maturity.-Every negotiable instrument is payable at the time fixed therein without grace. When the day of maturity falls upon Sunday, or a holiday, the instrument is payable on the next succeeding business day. Instruments falling due or becoming payable on Saturday are to be presented for payment on the next succeeding business day, except that instruments payable on demand may, at the option of the holder, be presented for payment before twelve o'clock noon on Saturday when that entire day is not a holiday.

Variant readings.—In Rhode Island the words except sight drafts " are interpolated after the words " every negotiable instrument." In New Hampshire, at the end of the first sentence, the following is added: "except that three days of grace shall be allowed upon a draft or bill of exchange made payable within this commonwealth at sight, unless there is an express stipulation to the contrary." In Colorado the last sentence reads: "Instruments falling due on any day, in any place where any part of such day is a holiday, are to be presented for payment on the next

succeeding business day, except that instruments payable on demand may, at the option of the holder, be presented for payment during reasonable hours on the part of such day which is not a holiday." In Arizona, Kentucky and Wisconsin, the third sentence is omitted, and in Vermont all of the third sentence down to the words "instrument payable on demand." In Iowa a section has been added to the statute as follows: "A demand made on any one of the three days following the day of maturity of the instrument, except on Sunday or a holiday, shall be as effectual as though made on the day on which demand may be made under the provisions of this act, and the provisions of this act as to notice of non-payment, non-acceptance, and as to protest shall be applicable with reference to such demand as though the demand were made in accordance with the terms of this act; but the provisions of this section shall not be construed as authorizing demand on any day after the third day from that on which the instrument falls due according to its face. In Massachusetts the section has been amended to read as follows: "Every negotiable instrument is payable at the time fixed therein without grace, except that three days of grace shall be allowed upon a draft or bill of exchange made payable within this commonwealth at sight, unless there is an express stipulation to the contrary. Where the day of maturity falls upon a Saturday, Sunday or a holiday, the instrument is payable on the next succeeding business day which is not a Saturday. Instruments payable on demand may, at the option of the holder, be presented for payment before twelve o'clock noon on Saturday, when that entire day is not a holiday; provided, however, that no person receiving any check, draft, bill of exchange or promissory note payable on demand, shall be deemed guilty of any neglect or omission of duty, or incur any liability, for not presenting for payment or acceptance or collection such check, draft, bill of exchange or promissory note on a Saturday; provided also, that the same shall be duly presented for payment or acceptance or collection on the next succeeding business day." (Acts, 1910, ch. 417.) In North Carolina the following section is inserted: "All bills of exchange payable within the state, at sight, in which there is an express stipulation to that effect, and not otherwise, shall be entitled to days of grace as the same are allowed by the customs of merchants in foreign hills of exchange payable at the expiration of a certain period after date on sight; provided, that no days of grace shall be allowed on any