payee's indorsement thereon being forged, is not such a demand as perfects the depositor's cause of action. Bank of British N. A. v. Merchants' Bank, 16 J. & S. 4. See, also, Howell v. Adams, 68 N. Y. 314, and cases there cited.

3. The constitutional provision (art. 8, § 6) of this State, that bills be redeemed in specie, is not self-operative, and an offer to redeem in legal tender, and refusal to redeem in specie, does not authorize bank superintendent to sell securities deposited with him. Metropolitan Bank v. Van Dyck, 27 N. Y. 400.

§ 87. Destruction of bank notes. When any circulating notes of any bank or individual banker shall be returned to the superintendent for destruction, the same shall be burned by or under the direction. of the superintendent, and such bank or individual banker shall procure the attendance of an agent to witness the counting and destruction of such circulating notes at the department and sign a certificate thereof. If such bank or banker shall refuse or neglect to appoint or procure the attendance of such agent within ten days after the receipt of the bills at the department, the superintendent shall select and appoint some indifferent person, who shall, as the agent of such bank or individual banker, witness and certify the counting and destruction of such notes, and such bank or individual banker shall forthwith pay on demand to the person so appointed, witnessing and certifying, such compensation therefor as the superintendent shall certify to be just and reasonable.

(Former section 68; R. S., 1532; L. 1882, ch. 409, § 79.)

888. Destruction of plates and counterfeit notes. The superintendent shall destroy, or cause to be destroyed, all bank-note plates in his custody of banks or individual bankers becoming insolvent, or which have given notice of closing their business, and any impressions made there from on hand. Hereafter when any bank or individual banker shall become insolvent or discontinue the business of banking, the superintendent shall destroy, or cause to be destroyed, all plates and impressions belonging to such bank or individual banker, and include in his next annual report a statement of the plates so destroyed. Every public officer into whose hands shall come any counterfeit bank-note plate or other device for counterfeiting bank notes, or any counterfeit or spurious bank notes, immediately after using them when necessary in evidence against the parties implicated, shall surrender the same to the superintendent, to be destroyed under his supervision, and he shall destroy all such

plates, devices or notes thus surrendered to him in the same manner as in case of banks whose charters has expired, or which have become insolvent, and report the same to the legislature in his annual report.

(Former section 69; R. S., 1532; L. 1882, ch. 409, § 80.)

The superintendent shall re

889. Exchange of mutilated notes. ceive mutilated circulating notes issued by him and deliver in lieu thereof other circulating notes to the same amount.

Every person who shall mutilate, cut, deface, disfigure or perforate with holes, or shall unite or cement together, or to any other thing, any bank bill, draft, note or other evidence of debt issued by a bank, or shall cause or procure the same to be done with intent to render such bank bill, draft, note or other evidence of debt unfit to be reissued by such bank, shall forfeit fifty dollars to the corporation injured thereby.

(Former section 70; R. S., 1532; L. 1882, ch. 409, § 81.)

§ 90. Redemption in notes of other banks. When an action shall be brought against any bank or individual banker for the recovery of the amount due on any circulating notes registered in the superintendent's office, the payment of which shall have been demanded at the banking-house or other place of business of the defendant, if it shall appear on the trial or otherwise, to the court in which such suit is brought, that at the time such demand of payment was made, the defendant offered in payment the circulating notes issued by any other bank or banker which were at the time at par in the city of New York, Albany or Troy, or a draft on any bank or banker in either of such cities, for the amount of the circulating notes so presented, with an affidavit, if required, that such draft is available to its full amount, to insure the immediate payment thereof on presentation, or in case any action shall be commenced upon such notes before the expiration of fifteen days from the time of the first demand thereof; and if such bank or banker shall be ready and prepared to redeem such notes in the lawful money of the United States at the ordinary place of business of such bank or banker, at the expiration of fifteen days from the time of the first demand thereof, with interest, then in either case the plaintiff in such action shall not re

cover any costs, fees or disbursements whatever against the defendant, and shall be entitled to recover no more than six per centum interest in lieu of all damages for the non-payment of such circulating notes. No interest shall be recovered upon such notes in any action unless the plaintiff or holder thereof shall have again presented the same for payment at the ordinary place of business of the defendant on or after the fifteenth day after such first demand and before the twentieth day, and the defendant shall have neglected or refused to pay the same with interest to that time.

If such bank or banker at the time of the first presentation of such notes shall have offered to pay current bank notes or drafts, or both, or either, in the manner above provided, and shall, at the time of such second presentation, pay or tender the amount of such notes in the lawful money of the United States at its ordinary place of business, then such bank or banker shall not be deemed to have suspended or refused specie payment or payment of its circulating notes, within the meaning of any statute authorizing proceedings for the dissolution of such bank, or to restrain or enjoin such bank or banker from the transaction of its business, or shall such bank or banker in such case be liable to any other or greater damages for the non-payment of such notes than above provided, notwithstanding any contrary provision in the charter of such bank or of any other statute.

(Former section 71; R. S., 1534; L. 1882, ch. 409, § 91.)

§ 91. Protest of notes and proceedings thereon. If the maker of any circulating notes countersigned and registered as herein provided, shall at any time hereafter on lawful demand during the usual hours of business, between the hours of ten and three o'clock, at the place where such notes are payable, fail or refuse to redeem such notes in the lawful money of the United States, the holder thereof making such demand, may cause the same to be protested in one package for non-payment by a notary public under his seal of office in the usual manner, unless the president, cashier or teller of the bank shall offer to waive demand and notice of the protest, and shall, in pursuance of such offer, make, sign and deliver to the party making such demand, an admission in writing, stating the time of the demand, the amount demanded and the facts of the non-payment thereof. The superintendent on receiving and filing in his office

such admission or protest, together with such notes, shall forthwith give notice in writing to the maker thereof to pay the same, and if such maker shall omit to do so for fifteen days after such notice, the superintendent shall immediately, unless satisfied that there is a good and legal defense to the payment of such notes, give notice in the state paper that all the circulating notes issued by such bank or banker will be redeemed out of the trust funds in his hands for that purpose; and the superintendent shall apply such funds to the payment pro rata of all circulating notes put in circulation by such bank or banker pursuant to the provisions of this chapter, and adopt such measures for the payment of such notes as will, in his opinion, most effectually prevent loss to the holders thereof.

If payment of such notes is not made for a period of ten days after the first publication of such notice, the superintendent shall sell at public auction the securities so pledged, or any of them, and out of the proceeds of such sale pay and cancel such notes, but the state shall not be deemed as under any pledge for the payment of such notes beyond the proper application of the proceeds of such securities for their redemption.

Damages for non-payment of any such notes in lieu of interest at the rate of six per centum per annum from the time of refusal of payment, shall be paid by the bank or banker, refusing to pay such notes on demand.

This section shall not apply to cases where circulating notes registered in the superintendent's office shall be presented for payment to an agent of any incorporated bank or individual banker appointed according to the provisions of this chapter relating to the redemption of bank notes, nor to any bank or individual banker for whom there shall not be at the time an agent duly appointed, as prescribed in this chapter; nor to any bank or individual banker whose place of business is in the city of New York, Albany, or Troy.

All fees for protesting any such notes shall be paid by the person procuring the service to be performed and the bank or banker issuing such notes shall be liable for the same, but no part of the securities deposited by such bank or banker shall be applied to the payment of such fees.

(Former section 72; R. S., 1535, 1536; L. 1882, ch. 409, §§ 92-96.) See New York Constitution, Art. VIII, § 5.

1. The provision of the Constitution that specie payment shall not be suspended is not self-executing, and a refusal of a bank to redeem in specie, but offer to redeem in legal tender, does not authorize bank superintendent to sell securities in his hands. The sale is only to be made when note is not redeemed in lawful money of the United States. Metropolitan Bank r. Van Dyck, 27 N. Y. 400.

2. The legislature shall have no power to pass any law sanctioning in any manner, directly or indirectly, the suspension of specie payments, by any person, association or corporation issuing bank-notes of any description. Art. 8, § 5, Constitution of New York.

Though this power was given to secure speedy redemption after the failure, it does not interfere with the superintendent's power to collect before failure, where it may be for the interest of any of the parties beneficially interested, and its collection by superintendent discharges the security. Flagg r. Munger, 9 N. Y.

494.

892. Appointment of agent by new corporation. - Every bank and individual banker who shall hereafter commence business under the laws of this state shall, upon first receiving circulating notes from the superintendent, appoint an agent for the purpose of redemption, and be subject in all respects to the provisions of this chapter in relation thereto; and the superintendent shall not deliver any circulating notes to such bank or banker until such appointment is made and filed in his office, which shall be immediately published by the superintendent in the manner hereinbefore provided.

(Former section 73; R. S., 1536; L. 1882, ch. 409, § 97.)

93. Revocation of appointment. Appointments of agents for the purpose of redemption may be revoked and new appointments of agents may be made from time to time by delivering such revocation of appointment to the superintendent, who shall cause the same to be published as hereinbefore provided. Several banks may appoint a common agent. Any number of banks and individual bankers may by agreement associate for raising a joint fund to be placed in the hands of their common agent for the redemption of their circulating notes in the city of New York or Albany, and also the circulating notes of other banks and individual bankers in such manner and under such regulations as may be agreed upon, and employ such agents and clerks as they may deem necessary to carry on the business of the common agency. No such agency shall redeem or purchase any circulating notes at a discount of more than one-half of one per centum, nor relieve or discharge any such bank or banker from any duty or liability required or imposed by this chapter, nor