bank which already has the paper, call for it, and stand there with it, perhaps till the close of its business hours, in waiting for the payor, or - what would be silly - to offer it back to the bank in the name of presentment.

However, it is not the presence of the paper in the bank that is treated as equivalent to or a substitute for handing it over; it is the presence of the paper there (1) at maturity, (2) to the knowledge of the bank, that satisfies the law. It is not enough that the holder has sent the paper to the bank before maturity, though that fact might be material in a suit against the bank for neglect of duty in the matter; it is not enough that the paper was in the bank at maturity, though that might be still more important in such a suit against the bank. If the bank knew nothing of the presence of the paper, the paper might as well not be there, for in such a case the bank cannot do the real thing required, make the payment.2

There is another case of equivalency, by local custom, in relation to presentment. In cases of the kind just referred to, the paper is on its face payable at the bank named; but it is not uncommon in certain States for the holder to send the paper to the bank with which he usually deals, for collection. In such a case the practice is for the bank to notify the maker, drawee, or acceptor that it holds the paper for collection, and requests payment. Then if the paper is left in the bank until its maturity, that will satisfy the requirement of presentment. Of this case too it should be observed that it is not the notice of the bank that constitutes presentment (or demand), but the presence of the paper in the bank at maturity.

In the same cases of instruments payable at bank, it is equally obvious that the law cannot insist upon demand in the ordinary sense. The instrument is to be lodged in the bank, and the maker or other payor knows the fact, and if he intends to pay will provide the bank with the funds before or on the day of the maturity, or may have funds on deposit generally with

1 Chicopee Bank v. Philadelphia Bank, 8 Wall. 641.

2 Id.

& Mechanics' Bank v. Merchants' Bank, 6 Met. 13, 23. See also West Brown, 6 Ohio St. 542; Cases, 108.

The bank

the bank subject to the payment of his paper. accordingly, if the instrument has been lodged with it for collection, has but to look at his books to see whether the party has provided for payment if he does not appear; and looking over its books completes demand of payment, if done at the right time; to wit, at the close of business hours on the day of maturity. Even that may not be necessary if the bank knows that there is nothing there with which to make payment; to look over the books in such a case would be idle. Lodging the instrument in the bank for collection appears to be the essential feature of demand.

It appears to answer the requirement of presentment that the holder, having the instrument with him, but not exhibiting it when he makes demand, so describes it as to leave no doubt that the payor must understand of what instrument the demand is made.1 Still the paper must be produced if it is called for."

§ 2. PLACE OF PRESENTMENT.

A clear line of cleavage runs through the whole law relating to the indorser's contract between paper payable (on its face or Paper payable by notice) at bank, and paper not payable at bank. at bank or not. With regard to the first of the two, the process of presentment has already been described in speaking of equivalents. But it should be observed that where the instrument is payable at any place designated by it, whether at bank or elsewhere, presentment should be made at that place; presentment anywhere else will be of no avail in fixing an indorser's liability, apart from waiver or sufficient modification of the contract.

An instrument payable at bank' is payable at any bank in 1 King v. Crowell, 61 Maine, 244; Arnold v. Dresser, 8 Allen, 435; Etheridge v. Ladd, 44 Barb. 69.

2 Ocean Bank v. Fant, 50 N. Y. 474; N. I. L. § 81.

3 N. I. I. §§ 79, 80; Hutchison v. Crutcher, 98 Tenn. 421. Presentment must be made at a bank at which the instrument is payable though the bank may have passed into the hands of a receiver. But if the bank desig. nated be closed at maturity and a new bank takes its place, no demand is necessary. Hutchison v. Crutcher, supra. Further see Central Bank v. Allen, 16 Maine, 41; Berg v. Abbott, 82 Penn. St. 177.

the place of payment, and may be lodged for payment accordingly. In the case of a bank having branches, Branch banks cheques are payable at the particular branch at

2

which the drawer keeps his account; hence presentment should be made there in all cases in which the holder has notice or is informed of the proper place. He would no doubt be told where to go if he presented the paper at the wrong place, and hence could not treat the refusal as a dishonor. If not in any way informed, he may have made a good presentment, though he made it at the wrong place.

3

The drawee of a bill of exchange may designate any place within the city or town in which the bill is payable as the place of payment, but cannot require presentment Drawee may in another city or town. It remains to consider name place of cases of presentment of paper payable at no place designated.

5

payment.

If no place of payment is designated on the paper, in which case the paper is commonly spoken of as 'payable generally,' it is payable at the address given, if any, on the Payable instrument, otherwise at the place of business or generally. of residence of the maker or acceptor; that is, in the absence of any special agreement between the parties. In regard to oral agreements changing the place of payment from that designated by law, there is some slight want of harmony in the authorities, one or two cases appearing to deny the admissibility of evidence to show such agreement. But the better view treats the doctrine of place of presentment, as it is laid down by law, as intended only to supply any want of evidence, and not as fixed

1 Hazard v. Spencer, 17 R. I. 561. To lodge the instrument for payment in a trust company would not be sufficient. Nash v. Brown, 165 Mass. 384. 2 Prince v. Oriental Bank, L. R. 3 App. Cas. 325, 332; Woodland v. Fear, 7 El. & B. 519.

Troy Bank v. Lauman, 19 N. Y. 477.

Niagara Bank v. Fairman Manuf. Co., 31 Barb. 403; Walker v. Bank of New York, 13 Barb. 636. But compare Mason v. Franklin, 3 Johns. 202. 5 N. I. L. § 80, 2. 6 N. I. L. § 80, 3.

7 Pierce v. Whitney, 29 Maine, 188; [dictum); Story, Notes, § 49, and note.

Anderson v. Drake, 14 Johns. 114

and absolute, and accordingly admits evidence of any agreement or understanding on the subject.1

In the absence, then, of agreement, the legal designation prevails; and in the absence of a designated address the law, it Place of busi- seems, designates the place of business, if there be ness preferred. one, as presumptively the place for making presentment. The place of business is (probably) preferred in law to the place of residence, because at the party's place of business rather than at his residence he expects to meet his engagements, especially to attend to calls for money. The consequence is that presentment at the residence of a maker or acceptor having a known place of business would, in principle, in the absence of sufficient reason, be insufficient in case of refusal. We say

in principle,' for the authorities have not often had occasion to speak plainly to the point, and many of them accordingly have been content with saying generally that presentment should be made at the place of business or of residence.3

There is no doubt that presentment at the place of business is good; the only doubt is whether presentment there is required. But whatever the rule on that point, 'place of business' must be taken in a real, substantial sense. It is not enough that some place has been used temporarily for the transaction of some particular piece of business, such as merely settling up old books or accounts; it must be the regular, known place for the transaction of the ordinary, general business of the party, in-. cluding the payment of bills. The counting-room of a merchant would be a proper place for presentment; a mercantile club-room ordinarily would not be. The general room of a workshop, or any part of a workshop having no office, would be.

1 Pearson v. Bank of Metropolis, 1 Peters, 89; State v. Hurd, 12 Mass. 171; Sussex Bank v. Baldwin, 2 Harrison (N. J.) 487.

2 King v. Holmes, 11 Penn. St. 456; West v. Brown, 6 Ohio St. 542. See Bank of Red Oak v. Orvis, 42 Iowa, 691.

3 See Sussex Bank v. Baldwin, 2 Harrison (N. J.), 487; Brooks v. Blaney, 62 Maine, 456; King v. Crowell, 61 Maine, 244; Malden Bank v. Baldwin, 13 Gray, 154. So too, unfortunately, in the Statute. N. I. L. § 80, 3;. Where no place of payment is specified, and no address is given, and the instrument is presented at the usual place of business or residence of the per sou to make payment,' the presentment is made at the proper place.

no place for making presentment; the place would indeed be a place of business, but not a place of business at which the owner in ordinary cases, would be apt to pay his bills.

Indeed, an office at which one pays one's bills, among other things, is enough to make presentment there good, if not to require presentment there. For example. The maker of a promissory note has a room, occupied also by other persons for business purposes, in which he is accustomed to receive business calls, and at which he directs such calls to be made. Presentment of the note is made there, and not at the maker's residence. The presentment is good.1

If, however, the maker or acceptor has no such known place of business, the holder must make demand at his residence, if, again, he has a known residence, or one which Place of can be found by reasonable diligence. If there is residence. neither place of business nor of residence so to be found, the holder has nothing to do in the way of presentment except in person or by his agent to be in the town in which the paper is payable, at maturity, ready with the paper to receive payment."

Removal of

acceptor.

But the maker or acceptor may have removed; and the holder has not performed his duty in the matter of presentment by merely seeking out the last known place of business or residence of the party, and failing to find maker or there the person sought. That is not presentment, nor is any case of excuse made by such facts. For example: The defendant is indorser of an accepted foreign bill of exchange, which has been protested for dishonor. The protest sets out a 'presentment' made at the late place of business of the acceptor, 'to the person there in charge,' who answered demand of payment by saying, 'the acceptor is not here now, nor have we any funds' with which to pay. That does not disclose facts sufficient to constitute presentment and demand; reasonable diligence requires further inquiry.

1 West v. Brown, 6 Ohio St. 542.

2 Meyer v. Hibsher, 47 N. Y. 265; Malden Bank v. Baldwin, 19 Gray, 154.

3 Brooks v. Blaney, 62 Maine, 456, Freeman v. Boynton, 7 Mass. 483