It has been held that a presentment at a different place from the one at which the note was payable, and an absolute refusal by the maker to pay, and a statement that any further presentment at the place specified would be useless, because there were no funds there, was not sufficient to charge an indorser.(q)

So where a note payable at one bank was, with the consent of an indorser, negotiated at another, a demand at the latter bank was held insufficient to charge the indorser, although it was proved that the maker had no funds at the bank where the note was payable.(r)

We are not aware that the necessity of such averment and proof to charge the drawer and indorser of a bill has been adjudged except in a very few of the reported cases in this country; but as to the proof, it must be as essential where the drawer or indorser of a bill is sought to be charged, as where the question is concerning the liability of an indorser of a note. (s) Whether

(q) Smith v. M'Lean, 2 Taylor, N. Car. 72.

(r) Watkins v. Crouch, 5 Leigh, 522.

(s) Tuckerman v. Hartwell, 3 Greenl. 147, is the only case which has been found where the liability of a drawer, in this respect, has been distinctly discussed. The bill was accepted to pay in Boston, and the words, "A. F. Howe & Co." were written at the lower left-hand corner, but were not plainly legible. The plaintiff insisted that these words formed no part of the acceptance; and as the bill was accepted payable in Boston, that they were only bound to prove that it was in Boston at maturity, and that due notice was given to the drawer of its dishonor But the judge, at Nisi Prius, instructed the jury, if they should find that the words “ A. F. Howe & Co." were placed upon the bill by the acceptor at the time of the acceptance, and intended to designate the place at which the bill should be presented for payment, and that the plaintiffs, the indorsers, knew that it was so intended, and where the place was, that it was incumbent on the plaintiffs to prove a demand at the place. The jury found for the defendant, and a new trial was refused. It may be observed, however, with reference to this case, that Mellen, C. J., after adverting to the difference between the liability of an acceptor and that of a drawer or indorser, said: "The line of distinction, however, is not drawn with clearness, and therefore we have not founded our opinion upon it, though there seem to be good reasons for the distinction" In Story on Bills, § 355, it is laid down, that "if the bill be made payable at a banker's, or other particular place, and accepted accordingly, it should be presented for payment at that place at its maturity, otherwise the drawer and prior indorsers will be discharged." In Story on Prom. Notes, § 230, it is said that the English and American authorities "are entirely in coincidence on the point that it is indispensable, in order to charge the indorser or the drawer, that a presentment for payment should be made not only at the place, but also on the very day of the maturity of the note or bill, otherwise the indorser or drawer will be absolutely lischarged." In Edwards on Bills, 496, it is stated, that, "when a bill or note is VOL. 1.-2 C

the distinction mentioned above, which the English courts seem to have taken between the necessity of an averment where the bill is drawn payable at a place certain, and its non-requirement where the acceptance alone is so payable, would be followed, may be doubted.

There can be no such distinction in this country as that which exists in England with reference to the liability of the maker, where the place of payment is mentioned in the body of the note, and where it simply constitutes a memorandum at the foot; because if the maker is liable without a presentment in the former case, he must be in the latter. This question might arise, however, with respect to the liability of an indorser of a note, or of a bill, with such a memorandum at the foot of the acceptance, or possibly of an acceptor who has accepted generally the bill drawn with the memorandum beneath the signature of the drawer. But it may well be doubted whether, independently of the question of alteration, the distinction adverted to is not more nice than sound; and it has a tendency to create confusion and uncertainty on this subject, already overburdened with niceties and refinements. (t) Where there is any difference between the law of the place where a note or bill is made, and that which exists where payment is to be demanded, the law of the latter, which must be pleaded and proved like any other fact, will govern.(u)

Whatever difference there may be in the cases, as to the necessity of a demand at the place specified, it is perfectly clear that, so far as place is concerned, a presentment there by the holder is always sufficient. And this is true, whether

drawn payable at a place named, it is essential to show, in an action against the drawer or indorser, a presentment at the place appointed." None of the American cases cited by the learned author, however, on this point, are direct decisions respecting drawers or indorsers of bills.

(t) In Tuckerman v. Hartwell, 3 Greenl. 147, the distinction in denied. The facts in this case will be found supra, note s. But in Pierce v. Whitney, 29 Maine, 188, 195, Shepley, J. said: "The place of payment must be stated in the body of the note, to make it payable at that place." A written memorandum of such a place at the foot,

46

or on the margin of the note, has been adjudged to be insufficient." These are mere dicta, however. The point was touched upon in Fletcher v. Blodgett, 16 Vt. 26, where it was said to be an open question. The subject of the effect of a memorandum, in general, is treated elsewhere.

(u) Pryor v. Wright, 14 Ark. 189.

the liability of the indorser, (w) maker, (x) drawer.(y) or acceptor () is concerned.

Nor in such case is it necessary for the maker himself, or his agent, to make any formal demand, for it is sufficient if the note is at the place on the day of maturity, ready to be delivered up to any party who may be entitled to it on payment of the amount due; and if, at the close of business hours, the note or bill is still unpaid, these facts alone constitute a dishonor, and the requisite

(w) In Saunderson v. Judge, 2 H. Bl. 509, the place of payment was mentioned in a memorandum, and yet a demand there was held sufficient. In Bank of U. S. v. Carneal, 2 Pet 543, Story, J. said: Where a note is payable at a bank, it is not necessary to make any personal demand on the maker elsewhere. It is his duty to be at the bank within the usual hours of business to pay the same, and if he omits so to do, and a demand is there made of payment by the holder, within those hours, and it is refused or neglected to be made, the holder is entitled to maintain his action for such dishonor." Berkshire Bank v. Jones, 6 Mass. 524; Woodbridge v. Brigham, 13 id. 556, 12 id. 405; Bank of Utica v. Smith, 18 Johns. 230; Anderson v. Drake, 14 id. 114, 117, by Thompson, C. J., who said: "The settled law now is, that a demand of payment at the place where the note is made payable is enough to charge the indorser. Gale v. Kemper, 10 La. 205; Commercial, &c. Bank v. Hamer, 7 How. Miss. 448; Cohea v. Hunt, 2 Smedes & M. 227; Harrison v. Crowder, 6 id. 464; Goodloe Godley, 13 id. 233; Rahm v. Philadelphia Bank, 1 Rawle, 335; Jenks v. Doylestown Bank, 4 Watts & S. 505, where it was held, that a statement in the protest of a demand at the bank was, prima facie, sufficient; also, that it need not be shown that the cashier was at the bank during the whole of business hours, because the presumption is that he performs his duty. See Bank of South Carolina v. Flagg, 1 Hill, S. Car. 177 In De Wolf v. Murray, 2 Sandf. 166, the holder went to demand payment of the acceptor of a bill directed to the latter, "at the office of H. O. Collard, No. 18 Chapel Walks, Liverpool," and found the office shut, and no one there to answer. Held a sufficient presentment to charge an indorser. See also infra, note y. Bank of Syracuse v. Hollister, 17 N. Y. 46, where the teller, who was also a notary, took the note to the bank at about 6 P. M., and finding it shut, as notary, demanded payment of himself, as teller. He knew that there were no funds in the bank. Held sufficient.

(x) Lyon v. Williamson, 27 Maine, 149, where the maker was ready at the time and place, and the holder was not there to receive the money, but subsequently made a demand at the place, and was not able to obtain payment. Held sufficient. Stedman v. Gooch, 1 Esp. 3.

(y) Supra, notes. In Evans v. St. John, 9 Port. Ala. 186, the drawer of a bill payable at a bank, in a suit against him, offered evidence to prove that he had deposited in the hands of the acceptor, at the maturity of the bill, funds more than sufficient to meet it. Held, that, inasmuch as a proper demand had been made at the bank, the evidence was inadmissible, because immaterial. In Hine v. Allely, 4 B. & Ad. 624, the acceptor accepted generally a bill directed to him at No. 6 Budge Row, Watling St. Held, that an averment of presentment to the acceptor was supported by proof that the holder went to the place mentioned to present the bill, and found the house shut up, and no one there. The subject how far this fact constitutes an excuse will be treated infra.

(z) Foden v. Sharp, 4 Johns. 183; McClane v. Fitch, 4 B. Mon. 599.

notice may be given forthwith to the proper parties. (a) It is usual, however, in such instances, to have a formal presentment and refusal made. We do not regard this as necessary. (b)

In some cases an examination of the accounts of the maker has been made, in order to ascertain whether the bank or banker at whose place of business a note has been made payable has any funds with which to pay the note. (c) But this is clearly unnecessary, where it is proved by any competent evidence that no funds were there to meet the note, and that no one came to pay it.(d) And unless the bank or banker is the owner of the note, and not merely the holder for collection, it may well be doubted whether the mere fact that the bank or banker had funds of the maker in its possession would constitute any defence for the

(a) Saunderson v. Judge, 2 H. Bl. 509; Fullerton v. Bank of U. S, 1 Pet. 604; Bank of U. S. v. Carneal, 2 id. 543; Berkshire Bank v. Jones, 6 Mass. 524; Folger v. Chase, 18 Pick. 63; Nichols v. Goldsmith, 7 Wend. 160; Ogden v. Dobbin, 2 Hall, 112; Woodin v. Foster, 16 Barb. 146; Gillett v. Averill, 5 Denio, 85; Allen v. Miles, 4 Harring Del. 234; Graham v Sangston, 1 Md. 59; Hunter v. Van Bomhorst, id. 504; Goodloe v. Godley, 13 Smedes & M. 233. These were cases against an indorser Maurin v. Perot, 16 La. 276, an action against a maker; State Bank v. Napier, 6 Humph. 270, an action against a bank for neglect of duty, by which it was claimed that the indorsers of a note deposited there were discharged

(b) In Ogden v. Dobbin, 2 Hall, 112, Oakley, J. said: "There was no necessity for the cashier to make any other demand. His subsequent delivery of the note to a notary, and his personal demand on the makers, was probably by way of greater caution, and was clearly unnecessary." So in Gillett v. Averill, 5 Denio, 85, where the only evidence of presentment was, that the teller, on the day of maturity, drew the note from the package where it was kept, and, knowing that the maker had no funds in the bank, he gave notice to the indorser, without any formal demand of payment, or any actual examination of the maker's account. The defendant moved for a nonsuit, which was denied. Whittlesey, J. said: "The presentment for payment was sufficient. It is understood to be the custom of banks holding promissory notes payable at their own counter to wait, on the day of the maturity of the note, until the close of business hours, and then, if the maker has no funds, to give notice of non-payment, without making any other demand of payment. This custom is sanctioned by judicial decisions. It may be usual for the teller, or other officer, to inquire of the book-keeper if the maker has any funds; but in this case such inquiry was unnecessary, as the teller swore that he knew there were no funds in the bank to pay the note. No formal demand, or unmeaning proclamation, at the close of banking hours for the day was necessary, or is ever necessary, in such cases." Fullerton v Bank of U. S., 1 Pet. 604, infra, note f; Shaw, C. J., Gilbert v. Dennis, 3 Met. 495, 497.

(c) Saunderson v. Judge, 2 H. Bl. 509; Maurin . Perot, 16 La. 276; Bank of South Carolina v. Flagg, 1 Hill, S. Car. 177.

(d) Gillett v. Averill, 5 Denio, 85, supra, note b; State Bank v Napier, 6 Humph. 270, where the judge at Nisi Prius instructed the jury that such examination was neces sary, and the charge was held to be erroneous; Fullerton v. Bank of U. S., 1 Pet. 604. infra, note f.

indorser; because this would give no right to appropriate the money to the payment of the note, without the direction of the promisor, and the consent of the bank or banker, or some usage of trade or custom to that effect. (e) But if the bank or banker, in such case, has become the owner, by discount or purchase, the circumstances just mentioned might perhaps furnish a defence.(f)

It is not necessary for the holder to show that the note was in the hands of the officer of the bank whose duty it was to receive payment; (g) nor even if it were proved that it was not in his hands, would this fact be material, provided the note was in the bank, and was unpaid. (h) If the note were in the bank, the presumption is that the proper officer could have obtained it; and if the note is the property of the bank, the plaintiff need not prove that it was at the bank, the presumption being that the note was there, and the burden of proof is upon the defendant to show that the maker called for the purpose of paying it.(i)

(e) We have found no authority to this effect, but it would seem that there can be no doubt of the proposition. But Story, J., in Bank of U. S. v. Carneal, 2 Pet. 543, said: "If the bank has funds of the maker in its hands, that might furnish a defence to a suit brought for non-payment. But this is properly matter of defence to be shown by the party sued, like any other payment, and not matter to be disproved by the bank, by negative evidence." It may be, however, that the bank in this case was the owner of the note. The suit was brought, it will be seen, in the name of the bank. See Fullerton v. Bank of U. S., infra, note f.

In Fullerton v. Bank of

(f) See Bank of U. S. v. Carneal, 2 Pet. 543, supra, note e. U. S., 1 id. 604, the judge, at Nisi Prius, charged the jury, “that, on a note made payable at a particular bank, it is sufficient to show that the note had been discounted and become the property of the bank, and that it was in the bank, not paid at maturity." The defendants excepted, and it was held that the charge was as favorable to them as they had a right to claim. Johnson, J. said: Nothing more than this could have been required by the court; for the positive proof that the bill was not paid will certainly imply that there were no funds of the drawer there to pay it. The fact could not have been made more positive by inspection of the books. The charge is, perhaps, too favorable to the defendants, since modern decisions go to establish that, if the note be at the place on the day it is payable, this throws the onus of proof of payment upon the defendant. This is more reasonable than to require of the plaintiff the proof of a negative, and comports better with the general law of contracts." See Gillett v. Averill, 5 Denio, 85, supra, note b. See also the cases of Allen v. Miles, 4 Harring. Del. 234; Maurin v. Perot, 16 La. 276. The language used in these cases is, that it is sufficient if the note is at the place, and there were no funds of the maker there.

(g) See Jenks v. Doylestown Bank, 4 Watts & S. 505, supra, p. 435, note w; Folger. Chase, 18 Pick. 63, infra, note i.

(h) State Bank v. Napier, 6 Humph. 270.

(i) Berkshire Bank v. Jones, 6 Mass. 524; Folger v. Chase, 18 Pick. 63, where