to pay, on the ground that he has a right to have his obligation or contract, or to see it canceled, when he is called upon to discharge it. And this rule will especially apply to negotiable securities which may be legally transferred to another at the very time the original payee makes his demand of payment." The court, in Smith v. Gibbs (Miss.) supra, says that a "demand, to be valid, must be accompanied by a presentment; for the maker is not bound to pay unless his note can be lifted."

See also Hodges v. Blaylock (1916) 82 Or. 179, 161 Pac. 396, and Waring v. Betts (1893) 90 Va. 46, 44 Am. St. Rep. 890, 17 S. E. 739, infra, I. b.

Accordingly, where the person making presentment does not have the bill or note with him, it has been held that the presentment is not valid. Freeman v. Boynton; Arnold v. Dresser (Mass.), and Eastman v. Potter (Vt.) supra. In Harrington v. First Nat. Bank (1899) 85 Ill. App. 212, a case involving the presentment of a check to a bank for payment, in which the holder of the check served upon the bank a notice with a copy of the check attached, the court says that this cannot be treated as a presentation for payment, "for the check itself was not presented," and the bank could not then have paid it if so disposed.

Where the holder of a bill of exchange, upon casually meeting the drawee, informs the latter that he has the bill, but does not actually present it, and the drawee declares that he will not pay the bill, it is held in Fall River Union Bank v. Willard (1842) 5 Met. (Mass.) 216, that such conversation does not constitute such a presentment of the bill as to discharge an indorser for want of notice. But a sufficient presentment was held to have been shown in Gilbert v. Dennis (1842) 3 Met. (Mass.) 495, 38 Am. Dec. 329, where the maker of a note went to the store of the holder, where the note was, and stated that he was unable to pay, and should not pay the note, and wished the holder to notify the indorser.

Compare Gilbert v. Dennis with Freudenberg v. Lucas (1918) 38 Cal. App. 95, 175 Pac. 482, infra, I. b.

The failure of a person making demand for the payment of a note, secured by collateral, to have possession of the collateral, prevents a valid demand. Ocean Nat. Bank v. Fant (1872) 50 N. Y. 474. The maker, upon demand, expressly refused to pay, upon the ground that the collateral securities were not produced.

The failure of the person making the demand for the payment of interest coupons to have possession of the note, which became due in default of payment of the interest, does not invalidate the presentment. Codman v. Vermont & C. R. Co. (1879) 17 Blatchf. 1, Fed. Cas. No. 2,936.

The decision in Lockwood v. Crawford (1847) 18 Conn. 361, merely goes to the extent of holding a presentment sufficient, although it does not appear that the person making demand had the note in his possession. The court says: "It is true that it does not directly appear that the opponent, who was 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 up 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 waiving, as they had a right to do, a more formal demand."

See also Folger v. Chase (1836) 18 Pick. (Mass.) 63, infra, I. d.

In some cases the objection has been as to the sufficiency of a showing in the notarial certificate that the paper was in the hands of the notary at the time of demand. These cases are in point in the present discussion in that they assume that the possession of the instrument is necessary to a valid presentment. The sufficiency of the notarial certificate as a showing of the presence of the note is beyond the scope of this discussion. It is interesting to note, however, that in Warren v. Briscoe (1838) 12 La. 472,

where the notarial certificate of protest stated that the notary went to the bank at which the note was made payable, and was informed by the teller there that there were no funds in the bank for payment of the note, whereupon he protested the same, it is stated by the court not to appear from the protest of the notary public that any actual presentment of the note or demand was ever made at the bank; but, in Carlile v. Holdship (1840) 15 La. 375, where the notary certified that he "demanded payment of the said note at the bank therein specified," it was held that, from the whole tenor of the protest, it appeared that the note was produced and presented for payment at the time and place specified therein; and in Nott v. Beard (1840) 16 La. 308, a notarial certificate that, at the request of the holder of the original draft, “I demanded payment of said draft at the countinghouse of the acceptors thereof, and was answered by a Mr. Bennett, one of said firm, that the same could not pay," was held to sufficiently show an actual presentment of the bill; and in Harbour v. Taylor (1844) 7 Rob. (La.) 32, a notarial certificate that, at the request of the holder of a note, he went to the bank at which the note was payable, and demanded of the cashier of the bank payment thereof, and was told that there were no funds to pay it, was held to sufficiently show an actual presentation of the note. Similar decisions appear in Union Bank v. Penn (1844) 7 Rob. (La.) 79; Peet v. Dougherty (1844) 7 Rob. (La.) 85; Louisiana Bank v. Satterfield (1859) 14 La. Ann. 80, 74 Am. Dec. 427. In Bank of Vergennes v. Cameron (1849) 7 Barb. (N. Y.) 143, a notarial certificate that the notary went with the draft to the bank and demanded payment was held to be fairly equivalent to saying that when he made the demand, he had the draft with him, and was prepared, in case of payment, to surrender it to the person who should honor the draft on behalf of the acceptor. But in Musson v. Lake (1846) 4 How. (U. S.) 262, 11 L. ed. 967, a notarial certificate that the "notary" demanded payment of said draft at the

countinghouse of the acceptors, and was answered by Mr. Keekman that the same could not be paid, was held insufficient.

b. Cases holding possession not neces

sary.

A few cases take the view that neither physical possession nor actual exhibition is necessary to a valid presentment. Freudenberg V. Lucas (1918) 38 Cal. App. 95, 175 Pac. 482; PORTER V. EAST JORDAN REALTY CO. (reported herewith) ante, 963. Α presentment was sustained as valid although the note was not in the possession of the party making the demand at the time thereof, in Hodges v. Blaylock (1916) 82 Or. 179, 161 Pac. 396, and Waring v. Betts (1893) 90 Va. 46, 44 Am. St. Rep. 890, 17 S. E. 739. The ground of both of these decisions seems to be that of waiver, although, in speaking of the waiver, both courts speak of it as a waiver of the exhibition of the instrument, and not as a waiver of the possession. In fact, the Virginia court, in its discussion, seems to regard possession of the instrument as necessary. It thus discusses the question: "Presentment of the bill or note and demand of payment should be made by an actual exhibition of the instrument itself; or at least the demand of payment should be accompanied by some clear indication that the instrument is at hand, ready to be delivered, and such must really be the case. This is requisite in order that the drawer or acceptor may be able to judge (1) of the genuineness of the instrument; (2) of the right of the holder to receive payment; and (3) that he may immediately reclaim possession of upon paying the amount. If, on demand of payment, the exhibition of the instrument is not asked for, and the party of whom demand is made decline on other grounds, a formal presentment by actual exhibition of the paper is considered as waived." Further on in the opinion it is stated that "in this case the presentment of the note was not made at the bank within the usual bank hours, with the note in possession, but, as we have seen, this was

excused in this case (1) by the fact that there was no bank to present it at, and (2) because payment was refused upon the ground that the bank had ceased to do business and its assets distributed, and the note was not asked for nor required, payment being refused on other grounds, the right to have it produced must be considered as waived." Subsequently, on same day, the notary, with the note in his possession, again demanded payment of the person who had been in charge of the bank at which it was made payable, and which had discontinued business, and who was also one of the indorsers on the note; but it seems that the presentment which the court is discussing in the above quotation is that which took place when the note was not in the possession of the party making the demand.

The only purpose of making a demand in Hodges v. Blaylock (Or.) supra, was to place the makers in default for the purpose of recovering an attorney's fee provided for in the note; and the court says that any reasonable request to pay a demand note at the time referred to is sufficient to put the maker in default if he fails to discharge the obligation.

In Freudenberg v. Lucas (1918) 38 Cal. App. 95, 175 Pac. 482, the note was in the custody of a third person, who had placed it in his safe, and was absent from his office on the date of maturity; upon inquiry by the owner of the note, he was informed of these facts, in the presence of the maker, whereupon he demanded payment of the note, and the maker stated that he was unable to pay it because he had no funds, but made no demand upon the owner that he exhibit the note to him. It was admitted that where the maker refuses to pay on the sole ground that he is without funds, and makes no demand that the note be exhibited to him, the exhibition of the note is excused; but it was claimed that the owner must have had the physical possession of the note, with the ability to exhibit it to the maker had demand then been made. In answer to this contention the court states that the "claim is highly tech

nical, and, in our opinion, without any support in logic. When, on the date of the note's maturity, Lucas and plaintiff were in Curtis's office, the note was in the same room with them, in the safe where the depositary chosen by Lucas and respondent had put it, and it was, in the eyes of the law, in plaintiff's possession, for it cannot be disputed that Curtis was, on that day, plaintiff's agent, and his possession was that of his principal. If exhibition of the note had been demanded, it might have taken some time to find Mr. Curtis and to get the safe open; but there was no legal impediment to the production of the note by plaintiff, any more than if plaintiff had brought it to Lucas in a strong box, the key of which plaintiff had inadvertently left at his home in another town. In either case the law would excuse the reasonable delay in physically producing the note, where such production was demanded; and where, as in the instant case, no such demand was made, it would be carrying technicality to a ridiculous extreme to make the validity of plaintiff's demand turn upon the wholly irrelevant question of his ability or inability to open his agent's safe.”

Compare with Gilbert v. Dennis (1842) 3 Met. (Mass.) 495, 38 Am. Dec. 329, supra, I. a.

The circumstances under which the foregoing cases holding possession not necessary to a valid presentment were decided militate against them as authority for the proposition that possession is not necessary generally. These cases seem rather to be exceptions to the general rule that possession is necessary, than cases establishing a contrary rule.

In case of a note owned by a bank, or left with a bank for collection, it is held in some cases that the person making demand need not, in order to make a valid presentment, have the paper with him at the time of making the demand, where the maker has knowledge of the custom of banks to make demand in this manner. Gallagher v. Roberts (1834) 11 Me. 489; Maine Bank v. Smith (1841) 18 Me. 99; Portland Bank v. Brown (1843)

22 Me. 295; Whitwell v. Johnson (1821) 17 Mass. 449, 9 Am. Dec. 165; Shove v. Wiley (1836) 18 Pick. (Mass.) 558.

Such a demand seems to have been treated as sufficient in Boston Bank v. Hodges (1830) 9 Pick. (Mass.) 420, as against an indorser who had knowledge thereof. In fact, a demand by letter has been sustained in such a case. Tredick v. Wendell (1817) 1 N. H. 80. Whether the letter was sent by mail is not clear.

In Maine Bank v. Smith (1841) 18 Me. 99, supra, a written notice was sent to the house of defendant. The manner of sending this notice does not appear.

If the maker has knowledge of the usage, so that the demand is sufficient as to him, the demand is sufficient as to an indorser, who may not have knowledge of the usage. Portland Bank v. Brown (1843) 22 Me. 295; Whitwell v. Johnson (1821) 17 Mass. 449, 9 Am. Dec. 165.

This rule is held to have arisen by custom of bankers. The court in Freeman v. Boynton (1811) 7 Mass. 483, after referring to the general rule that the party making presentation and demand must have possession of the instrument, says: "This rule may admit of exceptions; as, where the security may be lost, in which case a tender of sufficient indemnity would make the demand valid without producing the security, and where, from the usual course of business, of which the parties are cognizant, the security may be lodged in some bank, whose officers shall demand payment and give notice to the indorser, according to the custom of such bank; the security not being presented at the time of the demand, but the parties being presumed to know where it may be found." In Whitwell v. Johnson (1821) 17 Mass. 449, 9 Am. Dec. 165, the court says: "The demand upon the promisors in this case, being made without any presentment of the note to them, would have been wholly nugatory, but for the usage of the bank in which the note was placed for collection to make demands in this form, and the consent of the promisors to have the demand

so made upon them, which is a legal inference from their knowledge of the usage, as found by the jury. It can make no difference that the note was not made payable at the bank, since the custom is so prevalent in commercial towns where there are banks, to lodge notes in them for collection, that any man in business must be supposed to know that such course would be adopted; and, in the case before us, the consent to the form of demand usual at banks implies a knowledge that the note would be left there. The demand, then, was a legal demand upon the promisors, and they were bound, according to the usage, to go to the bank and discharge the note within the hours of business on the day it became due." The earlier cases required it to appear in the case that the maker of the note in question had knowledge of the usage of banks; in Grand Bank v. Blanchard (1839) 23 Pick. (Mass.) 305, it is stated that "the custom of the banks in 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, and all parties acquiescing in and assenting to such neglect 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 notes is presumed to be acquainted with it and assent to it; at least, until the contrary is expressly shown. When a custom has been definitely settled by judicial decision, it 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." This point, however, was waived by the parties in this case, so that the above statement is obiter.

This custom was recognized in Mechanics Bank V. Merchants Bank (1843) 6 Met. (Mass.) 13.

A demand by the cashier of a bank was held sufficient although he did not have the note with him at the

time of making the demand, where he left with the maker the written notice in the usual form, which informed the maker where the note was, that is, at the bank, and where both he and the indorser lived in the city in which the bank was located. Gallagher v. Roberts (1834) 11 Me. 489.

No usage of banks is referred to in Tredick v. Wendell (1817) 1 N. H. 80, holding that there was a sufficient demand, where, on the day the note became due, the cashier of the bank sent a letter to the maker, informing him where the note was, and requesting him to pay it, and the letter was, on the same day, left at his house, with his daughter, he not being at home. The court says that "the general rule undoubtedly is, that when a demand is made of the maker, the note itself should be presented, in order that it may be delivered to him upon its being paid; but we think the facts in this case show a sufficient compliance on the part of the plaintiff with the spirit of the rule. The note was in a bank, within a few rods of the maker's house, and he was informed where the note was, and requested to pay it. This was, in our opinion, giving him a sufficient opportunity to pay the note and take it up, had he been disposed to do it."

A usage was held not to have been established in Farmers Bank v. Duvall (1835) 7 Gill. & J. (Md.) 78, where it appeared that a servant of the bank served on the drawer a written notice in the usual form, stating when the note was due and must be paid, and left such notice with the drawer. The court says that it is supposed this language constitutes evidence "of a usage on the part of the bank to make demand of payment at a time and under circumstances different from the general rules of law, and that efficacy should be given to such usage if found by the jury, so as to validate as a demand that which, without such usage, 'would be a nullity. In the view which we take of the evidence, it is immaterial to examine the question as to the legal effect of such usage if established, because we consider that the witness proves no usage bearing on the

question of a demand. The only conclusion which can be drawn from the evidence is that it is the practice of this bank, as it is of all banks, to give notice of the falling due of notes; that the parties may be apprised not only of the holders of the notes, but reminded and admonished of the near approach of the time for the payment of their liabilities. The witness does not state the existence of any usage to treat this common notification as a substitute for the legal demand on the holder. The rule established is, on the contrary, perfectly consistent with the necessity of presentment for payment when due, and in the accustomed legal mode. legal mode. . . . Had reliance been intended to have been placed on such an alleged usage, the plaintiff should have gone further and proved that, by the usage of the bank, demands against the drawers of notes, in order to charge the indorser, were always made by the alleged notification on the day notes first fell due, instead of being made according to the rules of law, and that such notice was by usage a substitute for the lawful demand. In such a state of facts the question would have been brought before the court, how far, in point of law, such a notice could operate às a demand."

But other cases in which the note was held by a bank have applied the general rule that possession of the note is necessary to make a valid presentment. There was held to be no proper presentment in Barnes v. Vaughan (1859) 6 R. I. 259, in the case of notes left at a bank for collection, of which the maker had notice before the day of payment. The court states that this notice does not avail to make the note payable at the bank; that the maker had not, by the terms of his contract, agreed to pay the notes at that bank, and a demand there was no demand upon him; that it was necessary that demand should be made upon him personally, or at his dwelling or place of business on the last day of grace. In Halls v. Howell (1824) 16 S. C. L. (Harp.) 426, it was held that the depositing of a letter in the postoffice upon the day that a note became due, directed to the maker, demanding