If on presentment the note is not asked for, and on this account it is not actually exhibited, but its identity is perfectly known to the party on whom the demand is made, there is no reason why the non-exhibition of it should vitiate the demand; (n) and indeed, the better rule, as drawn from the authorities, would seem to be, that in order to destroy the validity of the demand, on the ground that the note was not exhibited, the maker or acceptor should, either expressly or by implication, refuse to pay on that account; otherwise, he will be deemed to have waived his right to require that the note should be shown to him.

If the note or bill is lost, it is sufficient if the demand be made with a presentment of a true copy of the lost paper; (0) and where it is necessary to tender a bond of indemnity to the maker before he is liable, such a bond should also be presented.

But this rule respecting the necessity of presenting the note is subject to other exceptions. Thus, in Massachusetts, it has been the custom for a bank which becomes the holder of negotiable paper to issue a notice to the promisor a few days before matu rity, informing him that the paper is in the bank, setting forth the date when it will be payable, and requesting him to come there and pay it. It is distinctly held in that State, that such previous notice to the promisor, with neglect on his part to pay the note at the bank, constitutes a conventional demand and refusal, which amounts to a dishonor of the note, and that it is not the delivery of the previous notice to the promisor which constitutes the presentment, but that it is the failure to pay at the bank, during bank hours on the last day of grace, which amounts to dishonor.(p) Indeed, this custom is said to have become so gen

(n) Lockwood v. Crawford, 18 Conn. 361, an action against an indorser of a note which had been partially paid by the promisor. Church, C. J.: "It is true that it does not directly appear that the payee presented the note in form, and demanded payment; but as he had not, at that time, transferred it, the makers might well presume it continued in his possession ready to be delivered upon payment. When called upon for the balance, they did not inquire for it, nor refuse to pay because the note was not shown to them; on the contrary, they said that they could not conveniently pay any more then, and requested the payee to draw upon them at a future time; thereby waiv ing, as they had a right to do, a more formal demand."

(0) Hinsdale v. Miles, 5 Conn. 331; Posey v. Decatur Bank, 12 Ala. 802. (p) Shaw, C. J., Mechanics' Bank v. Merchants' Bank, 6 Met. 13, 23. The point was first decided in Jones v. Fales, 4 Mass. 245, where the note was not made payable at 8 bank, but the defendant, an indorser, was found to have been acquainted with the usage, and this fact was held to be admissible evidence of an agreement on his part to be bound

eral and universal, and it would seem, perhaps, to have become so far incorporated into the general law of that State, that every one who incurs the liability of maker and indorser may be supposed to have contracted with reference to it, and knowledge on his part may be presumed.(g) Evidence of such a mode of de

thereby, though it did not appear that he had ever conformed to the usage. Widg ery v. Munroe, 6 id. 449, where the defendant, an indorser, had been accustomed to leave his notes in the bank for collection, and had conformed to the usage. Lincoln & Kennebeck Bank v. Page, 9 id. 155; Lincoln & Kennebeck Bank v. Hammatt, id. 159, in which cases the note was made payable at the bank. In Weld v. Gorham, 10 id. 366, the note was not payable at a bank, and it was left to the jury to find whether the maker and the indorser, the defendant, were conversant of the usage, and they were directed, that the fact that the maker and indorser were directors of the bank, and the long continuance of the custom, were presumptive evidence of knowledge. In Blanchard v. Hilliard, 11 id. 85, the defendant, an indorser, was proved to have knowl edge of the custom. In State Bank v. Hurd, 12 id. 172, the note was payable at a bank, and the notice, by direction of the maker and indorser, was left at a store of a third party. In Peirce v. Butler, 14 id. 303, it is said that evidence of the custom is sufficient to bind the indorser, if he had been conversant of the usage. In Whitwell v. Johnson, 17 Mass. 449, the note was not payable at a bank, the maker knew the custom, but there was no evidence that the defendant, an indorser, was acquainted with

it.

Held sufficient. Parker, C. J.: "If the indorser has seasonable notice of the fact of non-payment when the note is due, it must be immaterial to him in what form the demand upon the maker was made. If there had been no demand, he would not be liable, because it does not appear but that the note would have been paid, if demanded; and it is within the terms of the stipulation that such demand shall be made. But if there has been such a demand as the maker was bound by, so that he had no right to refuse payment, it is not easy to see how it concerns the indorser whether the legal forms have been complied with, or waived by the promisor. The case of State Bank v. Hurd, 12 Mass. 172, was decided upon this principle, and the only difference be tween that case and this under consideration is, that in that, the note was payable at the bank, and in this, it was not. But the circumstance was not essential, as it would not follow that Hurd, the indorser, was conversant of the usage of the bank merely because he indorsed a note payable there." These decisions are affirmed in City Bank v. Cutter, 3 Pick. 414; Boston Bank v. Hodges, 9 id. 420; North Bank v. Abbot, 13 id. 465; Shove Wiley, 18 id. 558, where the evidence of knowledge was that the indorser was frequently at the bank transacting business, and frequently paid notes there; Central Bank v. Davis, 19 id 373; Grand Bank v. Blanchard, 23 id. 305.

(7) See Grand Bank v. Blanchard, 23 Pick. 305. Shaw, C. J. said: "But the custom of the banks of Massachusetts of sending a notice to the maker of a note to come to the bank and pay it, and treating his neglect to do so during bank hours on the last day of grace as a dishonor, . . . . has become so universal, and continued so long, that it may well be doubted whether it ought not now to be treated as one of those customs of merchants of which the law will take notice, so that every man who is sufficiently a man of business to indorse a note may be presumed to be acquainted with it and assent to it, at least until the contrary is expressly shown. It is to be recollected that the rules respecting presentment, demand, and dishonor of bills of exchange and promissory notes, and indeed the lex mercatoria generally, originated in the custom of merchants, which custom was a matter of fact to be proved by the party relying on it, and VOL. I.-Y

mand may be given in support of an averment of presentment to the maker.()

This custom has also been sanctioned by judicial decision in Maine; (s) but it has been doubted, perhaps, in Maryland,(t) and in New Hampshire; (u) at least the courts of these States do not

to be determined by the jury. But when a custom has been definitely settled by judicial decisions, is taken notice of by courts as part of the law of the land, and need not be proved as a fact in each case "

(r) City Bank v. Cutter, 3 Pick. 414; Boston Bank v. Hodges, 9 id. 420; North Bank v. Abbot, 13 id. 466, where Shaw, C. J. said: "The principle of allowing some latitude in the mode of proof, where a presentment and demand are averred in the declaration, seems to be this: the plaintiff does not give in evidence matter strictly in excuse, but a qualified presentment and demand, or acts which, in their legal effect, and by the custom of merchants, are deemed equivalent to demand.”

(s) Gallagher v. Roberts, 2 Fairf. 489; Maine Bank v. Smith, 18 Maine, 99. (1) Farmers' Bank v. Duvall, 7 Gill & J 78. One of the head notes is as follows: "The practice of banks to give notice to the makers of notes of the time of their maturity, and place of deposit for collection, cannot, where such notice has been delivered, be substituted for a demand of payment so as to affect the indorser." This appears to be a broader statement than is warranted by the case. All that is decided with regard to the usage is that the evidence in the case did not prove it.

(u) Moore v. Waitt, 13 N. H 415. In this case, the drawer, acceptor, and payee resided in different towns. When the payee received the bill, he told the drawer that he should get the bill discounted at the bank. Instead of doing this, he left it at the bank for collection. The custom of the bank, and of the banks of several adjoining towns, was given in evidence, but it did not appear that the drawer and acceptor knew of the custom. The suit was brought against the drawer, who defended on the ground that there had not been a sufficient presentment. Held, a good defence. Parker, C. J.: "It appears that the bill was left in the Framingham Bank for collection; and the plaintiff relies upon a usage of that bank to notify the acceptor and drawer through the mail, on the last day of grace, as an excuse for a neglect to present the bill to the acceptors for payment. But we find nothing in the case to charge the defendant upon any usages of the Framingham Bank. The payee, when he received the bill, told the defendant that he should get it discounted at that bank. This he did not do, for a sufficient reason, but instead thereof left it in the bank for collection. The utmost effect that could be given to this would be as a notice to the defendant that the bill would be in that bank at its maturity. Such notice would in no way extend or vary his liability. The bill was not drawn payable at that bank; nor would the notice, when the payee received it, that it would be left there, have any operation to bind the acceptors, or the defendant, to seek it at that place. Nor could the notice to the acceptors, according to the custom of the bank, when the bill became due, impose any greater duty upon them than existed when they first accepted the bill, or charge the defendant for their neglect to make payment at that place. It does not appear that the acceptors had any notice that the bill was there until after the last day of grace. The defendant had no agency in procuring the bill to be left there. Nor does it appear that he had any knowledge of the usages of the bank. If he had had such knowledge, that fact would not have operated as a waiver of his right to require that a demand should be made upon the acceptors, according to the general rules of the law, before payment was sought of him In Leavitt v. Simes, 3 N. H. 14, Richardson, C. J said: The usage of the banks

seem disposed to give it such effect as is allowed in Massachusetts. Even in Massachusetts it is a prevailing and very general, if not universal usage, for the banks to hand the dishonored note to a notary on the day that it matures and remains unpaid, and the notary makes the same demand that he would if no previous notice had been given.

Another exception is, when the maker calls upon the holder at his place of business the day the note falls due, and declares his inability to pay it, and requests the holder to give notice to the indorser. In such case it has been held that there was a demand sufficient to bind the latter, though the note was not shown.(v) This may, however, be considered rather as a waiver of the maker's right to insist upon its exhibition.

Another exception arises in the case of notes and bills payable at a specified place. Thus, when a promisor makes a note payable at his banker's, and the banker himself becomes the holder of the note, it is held to be a sufficient presentment to charge an indorser, if the banker turns to his books and examines the promisor's account; and a sufficient refusal, to find that there is no balance due the latter from the former. (w) It will also be seen hereafter, that, when a note or bill is payable at a specified place, it is sufficient if it is there at maturity, ready to be given up, on payment, to any party calling for and authorized to pay it.(x) It is not easy to see how a sufficient demand can be made with safety through the post-office.(y) A letter addressed to the

is found, but it is not found that the defendant (an indorser) had ever conformed to the usage, or even that he was conusant of it. There is then nothing from which his assent to waive the want of a regular demand can be inferred. . . . . We are of opinion, that it is not enough in this case to show the usage, and that the defendant was conusant of it. We think his assent to the usage is not to be inferred from the simple fact that he had knowledge of it. If it can be shown that he had conformed to the usage, it may deserve consideration whether his assent to it might not be inferred from his conduct. On the other hand, it will deserve very serious consideration, whether the admission of testimony to show the usage, and his assent to it, is not to admit parol evidence to vary the terms of a written contract."

(v) Gilbert v. Dennis, 3 Met. 495.

(w) Saunderson v. Judge, 2 H. Bl. 509.

() Infra, p. 434.

Halle v. Howell,

(y) In the following cases such a demand was held insufficient. Harper, 426; Gillespie v. Hanrahan, 4 McCord, 503; Stuckert v. Anderson, 3 Whart. 116. In Duke of Norfolk v. Howard, 2 Show. 235, an action by the payee against the maker of a note payable within three months after the plaintiff should demand the same, the plaintiff's attorney delivered a demand in writing at the defendant's house to his maid, by whom he sent it up to the defendant, he being sick and not

maker at his residence, stating that the note is due and unpaid, and demanding payment, even if it add the place of the note, would seem, on general principles, not to be a good demand, unless there were some usage justifying it. If the note were enclosed in the letter, and an immediate return made of the note, with an answer of refusal, this might hold the subsequent parties. But if the payee returned the note, and made no answer, or even retained it and refused, we should doubt whether any notice to subsequent parties could be predicated on such a refusal which would be sufficient to hold them.

A demand on the maker in the street is not, in general, sufficient; but it may be doubted whether it will not suffice to bind an indorser, unless objection be made to the place; or at least slight acts on the part of the maker would, we think, be construed as a waiver of his right to object on that account.(z) It has been held, that a demand on the maker by a sheriff serving a writ upon him, is not a demand upon which notice to an indorser can be founded; (a) though it will certainly be sufficient if the sheriff have the note in one hand and the writ in the other, and if, on refusal to pay the note, the sheriff immediately serve the writ.(b)

to be spoken with; the maid brought down word she had delivered it to her master. Held, no good evidence to maintain the action, for the demand ought to be personal; and delivery of a demand in writing to the servant at the house is no good demand.” Sed quære.

(z) King v. Holmes, 11 Penn. State, 456. Rogers, J. said: "The court correctly instructed the jury, that a demand in the street of an acceptor of a bill of exchange is not a sufficient demand. That when a bill is payable generally, and not at a particular place, the demand must be at the place of business of the acceptor. But if the notary, on his way to the place of business of the acceptor, meets him in the street, and informs him of his business, and where he is going, and the acceptor offers, if he will go to his place of business, to give him only a check on a broker, it is not necessary for the notary to proceed further. The demand at the place of business is waived by the payor or acceptor. It is, in effect, a refusal to pay, for an offer to pay by a check on a broker, in legal contemplation, is nothing; it is not such a tender as the notary would be justified in accepting. In this case the acceptor had no cause of complaint; for the notary offered to receive a check on one of the banks in payment of the bill." See Fall River Union Bank v. Willard, 5 Met. 216, cited supra, page 348, note g.

(a) Branch Bank v. Gaffney, 9 Ala. 153. It does not appear in the case whethe the officer had the note with him or not, but the reason stated by Collier, C. J. is: "The writ or summons by which a suit is commenced does not invest the officer to whom it 18 addressed with authority to receive the money. It is not, in form, a request to pay it, nor does it suppose that the defendant therein will pay it, otherwise than by legal coercion." If the reason was that the sheriff did not have the note with him, the case is sound; otherwise, it would seem that the decision could not be sustained. (b) Seaver v. Lincoln, 21 Pick. 267. See the cases cited supra, p. 359, note e