does not excuse demand of payment. Berkshire Bank v. Jones, 6 Mass. 524; Low v. Howard, 11 Cush. 268, 270.

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. And from the nature of the indorser's contract no new consideration is required to support the waiver whether given before or after the maturity of the paper. Burgettstown Nat. Bank v. Nill, 213 Pa. St. 456. The facts constituting the waiver must be specifically pleaded. Galbraith v. Shepard, 43 Wash. 698. 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, 300301; Toole v. Crafts, 193 Mass. 110; Baumeister v. Kuntz (Fla.), 42 So. Rep. 886.

§ 143. 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.

§ 144. Liability of person secondarily liable, when instrument dishonored.— 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 (a).

(a) When the indorser's liability has been fixed by demand and notice of dishonor, he becomes an independent and principal debtor, and does not stand in the position of a mere surety. German-American Bank v. Niagara Cycle Co., 13 App. Div. (N. Y.) 450; First Nat. Bank v. Wood, 71 N. Y. 405, 411. 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. 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, Cowles v. Peck, 55 Conn. 251; Summers v. Barrett, 65 Iowa, 292; for in such case the terms of the express contract exclude the idea of an intention to incur the liability prescribed by the statute.

§ 145. 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 (a) 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 12 o'clock noon on Saturday when that entire day is not a holiday (b).

(a) The words " or becoming payable" were added by Laws of New York, 1898, chapter 336. This amendment seems to have been made upon the suggestion of some one who feared that the phrase "falling due on Saturday," might not include a case where the date of maturity occurs on a holiday immediately preceding Saturday. The doubt seems to have been based upon a misconception of the correct meaning of the term "falling due." In common parlance, we sometimes speak of paper as "falling due on a holiday," meaning by this, that the time for which the note or bill has to run matures on that day; but this language is not strictly accurate; for, as the holiday is dies non, the paper is not, in fact, due on that day, but is due on the day following. In the case mentioned, therefore, paper so maturing may be correctly described as "falling due on Saturday." As to paper maturing on Saturday, however, where that day is not a holiday, there is a distinction between "falling due" and "becoming payable;" for, in such case, Saturday is not dies non, and, properly speaking, the paper is due on that day, though for the convenience of

bankers and others, the statute authorizes presentment on Monday. This distinction was observed in the section as it stood originally, but the amendment destroys the harmony between the second and third sentences. The only other States which have adopted this change appear to be Missouri and Virginia.

(b) Laws of Mass. March 30, 1895, May 28, 1895; Laws of Maine, 1897, Ch. 259; Laws of New York, 1887, Ch. 289, Ch. 461; Laws of Penn. May 31, 1893; Laws of U. S. Feb. 18, 1893; Laws of N. J. 1895, Ch. 43. This section varies greatly in the different States, both as to grace and as to paper maturing on Saturday.

§ 146. Time; how computed.- Where the instrument is payable at a fixed period after date, after sight, or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run, and by including the date of payment (a).

(a) See New York Statutory Construction Law, sections 26, 27.

$147. Rule where instrument payable at bank. Where the instrument is made payable at a bank it is equivalent to an order to the bank to pay the same for the account of the principal debtor thereon (a).

(a) Prior to the statute there was some conflict in the decisions as to the authority of a bank to pay a note or acceptance made payable there. The rule adopted in the statute is sustained by the weight of authority; and is also the rule which is most convenient in practice. It is supported by the following decisions: Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; Commercial Bank v. Hughes, 17 Wend. 94; Commercial Nat. Bank v. Henninger, 105 Pa. St. 496; Bedford Bank v. Acoarn, 125 Ind. 582; Home Nat. Bank v. Newton, 8 Bradwell, 563; contra: Grissom v. Commercial Bank, 87 Tenn. 350. In Pennsylvania it is held that where a bank is the holder of a note payable at the banking house, and upon its maturity the maker has a cash deposit in such bank exceeding the amount of the note, which deposit is not specially applicable to a particular purpose, the bank is bound to charge up the amount of the note against the deposit. In such

cases the note is in effect a draft on the bank in favor of the holder, and in discharge of the indorser. German National Bank v. Foreman, 138 Pa. St. 474, 479; Commercial National Bank v. Henninger, 105 Pa. 496. But it is also held in that State that while a bank which has discounted a promissory note may appropriate to the payment of the note funds in its hands belonging to any party to the note, when payment is not made at the time and place named, yet it is not bound to do so as to any party except the makers. Mechanics' and Traders' Bank v. Seitz, 150 Pa. St. 632.

§ 148. What constitutes payment in due course.-Payment is made in due course when it is made at or after the maturity of the instrument (a) to the holder (b) thereof in good faith and without notice that his title is defective.

(a) Payment before the day is a defense which binds only the party receiving payment and those who stand in his shoes. Watson v. Wyman, 161 Mass. 96, 99.

(b) It is the duty of the maker or acceptor to require a production of the paper before paying the same, and possession is generally the only adequate evidence upon which he has any right to rely. Loizeaux v. Fremder, 123 Wis. 193; Adair v. Lenox, 15 Oregon 489. The rule is that if a bill or note be paid at maturity, in full, by the acceptor or maker, or other party liable to a person having a legal title in himself by indorsement, and having the custody and possession of the bill ready to surrender, and the party paying has no notice of any defect of title or authority to receive, the payment will be good. But if upon such payment the holder has not the actual possession of the paper ready to be delivered, and does not in fact surrender it, but gives a receipt. or other evidence of the payment, and it turns out that the party thus receiving had not a good right and lawful authority to receive and collect the money, but that another person has such right, the payment will not discharge the party paying, but will be a payment in his own wrong. Wheeler v. Guild, 20 Pick. 545, 553; Trustees of the I. I. Funds v. Lewis, 34 Fla. 424, 428. Concerning this rule, the Supreme Court of Wisconsin said in a late case: "It is so simple, and, once understood, furnishes so easy and sure a means for both debtor and owner to protect themselves

against unauthorized acts of others, that it ought not to be weakened or confused. The holder can always be safe by retaining the instrument in his possession; the debtor, by refusing payment without actual presentation. It is justified in application to negotiable paper distinctively from other property by the very dominant purpose of easy and probable transfer at any moment, so that what may be true as to ownership of such paper on one day is likely to have changed on the next. On the probability of such change the negotiability of the instrument is a continual .warning." Loizeaux v. Fremder, 123 Wis. 193, 198. Such rule applies generally to all negotiable paper independently of the existence of any mortgage or other security. Marling v. Nommensen, 127 Wis. 363. Payment made to the original holder, after indorsement and delivery of the paper even as collateral security, is no defense to a suit on the note by the indorsee, although the payment was made by the maker without notice or knowledge of the transfer. Gosling v. Griffin, 85 Tenn. 737. But while a person not in the actual possession of negotiable paper is presumed from that fact alone to have no authority to receive payment thereon, yet such presumption may be rebutted and overcome by evidence showing actual authority. Swengle v. Wells, 7 Ore. 222. The original payee of a negotiable note in possession thereof, is presumed to be the owner, and has ostensible authority to receive payment, although the note bears the blank indorsement of such payee. Home Savings Bank v. Stewart (Neb.), 110 N. W. Rep. 947.