that no man can make himself the creditor of another without the latter's authority or consent; and not only has it no recognized application to a promissory note, but the stranger who would thus acquire the rights of a bona fide holder must pay for the honor of all the parties, and of no particular one, and not before but after protest, complying likewise with certain formalities, by way of notice.1

Acceptance admits the drawer's signature to be genuine, and the acceptor is liable to an innocent holder for value, though the signature should prove a forgery. And, further, it admits that the bill is drawn on funds in his own hands, and that the payee named is capable of indorsement, though, generally speaking, the acceptor does not warrant indorsements.2 But an acceptance supra protest does not seem to admit the genuineness of any signature, not even that of the drawer. And it may be well to add that a certain duty rests upon the holder of a bill in the matter of seasonable presentment for acceptance; this duty being interpreted, however, in the light of circumstances; and due diligence in presentment applying, as a rule of necessity, rather to bills payable on demand, or at or after sight, than to bills payable at a certain time after date. If the drawee refuses to accept, immediate notice should be given to all prior parties on the incomplete bill to charge them; and sometimes in the case of foreign bills a formal protest will be necessary. 4

§ 450. Rights and Duties of the Holder of Negotiable Paper on its Maturity. — Of the transfer of a bill or note by de

1 Konig v. Bayard, 1 Pet. 250; Redf. & Big. 87, 88; Gazzam v. Armstrong, 3 Dana, 554; 1 Pars. 313-320; Schimmelpennich v. Bayard, 1 Pet. 264; Phillips v. Thurn, L. R. 1 C. P. 463. For an unusual acceptance by "giving credit to the bill," see Dunavan v. Flynn, 118 Mass. 537; Hall v. Steel, 68 Ill. 231.

2 Hortsman v. Henshaw, 11 How. 177; Redf. & Big. 59-63; Meacher v. Fort, 3 Hill (S. C.), 227; Beeman v.

Duck, 11 M. & W. 251; 1 Pars. 320323.

3 Redf. & Big. 63; Wilkinson v. Johnson, 3 B. & C. 428. See Phillips v. Thurn, L. R. 1 C. P. 463.

4 See Story Bills, §§ 231, 273, n.; Redf. & Big. 39-41; 1 Pars. 330-352; 2 H. Bl. 565; Clarke v. Russel, 3 Dall. 415; Allen v. Suydam, 20 Wend. 321; Walker v. Stetson, 19 Ohio St. 400.

livery with or without indorsement we shall speak presently at some length; and, not to make the subject too perplexing at the outset, we take now the simplest instance of a presentment for payment on maturity of negotiable paper. We may remark, in passing, however, that one often speaks of "the holder" of negotiable paper, his rights and duties; and that by "the holder," in this connection, is usually meant in law, the owner of it; since, as the text-writers have shown, if a bill or note be in one's possession without title or interest, that person should ordinarily be considered only as the agent of the owner; though possession of the instrument in regular form affords a prima facie title.1 The principal right of the holder of negotiable paper at its maturity is to demand payment; while his principal obligation is to present that paper properly for acceptance or payment, one or the other, or both, as the case may be.2

for

§ 451. Presentment and Demand; how and where made. With regard to the presentment of a bill or note, and demand for its payment on maturity, and as respects the formalities to be pursued in case of its dishonor, and the consequent liability of various parties in their proper order, where all these preliminaries were carried out as they should have been, the rules of law are quite peculiar, though their analogy is to be found in the doctrines of guaranty. The general rule is that upon the holder, either personally or by his agent, rests the duty of presenting and making a demand of payment.3 As to the party of whom demand should be made, the rule

11 Pars. 253 et seq.; Pettee v. Prout, 3 Gray, 502.

2 One who has acquired the paper in good faith, and for valuable consideration, from a party capable of transferring it, is further styled a bona fide holder; and the rights of a bona fide holder are largely considered, as we shall soon see, in cases where bills or notes have been put into circulation wrongfully, or there is some other element of fraud discoverable. See 1 Pars. 254-280, and cases cited; Redf. & Big. 165-289.

8 The agent, if any, may be authorized without any writing; and, indeed, it is very common for business men, in these days, to put into the bank such bills and notes as they may hold, using the agency of the bank, instead of presenting the paper on maturity themselves. 1 Pars. 357361; Sussex Bank v. Baldwin, 2 Harrison, 487; Bank of Utica v. Smith, 18 Johns. 230; Seaver v. Lincoln, 21 Pick. 267.

is sufficiently liberal for the holder; since parties other than the principal one may be charged, on non-payment, if the presentment and demand were made to a person authorized to pay the bill or note, at the right place and time, and in the proper way.1

Where a promissory note is not made payable at any particular place, or, as they say, is "payable generally," the rule is that, in order to charge the other parties, demand of payment must be made of the maker personally at his place of business or else at his dwelling-house or other place of abode. But this is a rule subject to proper qualifications; and, under various circumstances, a demand in any form or manner may be dispensed with. For, after all, it is a question of due diligence; and wherever a demand is found to be impracticable, proper efforts for that purpose having been made, the parties subsequent to the maker may be held to their usual liabilities. The general result of the cases is

11 Pars. 361; Redf. & Big. 326330; Matthews v. Haydon, 2 Esp. 509. Presentment of a partnership note should be at the firm's place of business, or at the dwelling-house of either of the partners. 1 Pars. 362; Erwin v. Downs, 15 N. Y. 575. See Granite Bank v. Ayers, 16 Pick. 392. The paper ought to be presented when payment is formally demanded, for the payer has a right to require its delivery up to him before he pays; but whether, in case the party demanding has the paper accessible, and the paper is not shown because it is not asked for, the demand will be vitiated, is a point on which the authorities are not decisive. See Musson v. Lake, 4 How. 262; 44 Barb. 69; Arnold v. Dresser, 8 Allen, 435; Redf. & Big. 296, 297. Mr. Parsons says: "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 ex

pressly 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." 1 Pars. 368, with authorities cited. And see Ocean Bank v. Fant, 50 N. Y. 474. The rule of presentment is, at all events, considerably affected by local custom, and particularly by bank usage, since banks are, after all, the usual collecting agents of negotiable paper in this country. If a bill or note be lost, it is sufficient to accompany the demand with a presentment of a true copy of the lost paper; though here it would be fair for the acceptor or maker to require a bond of indemnity before making payment. 1 Pars. 368; Hinsdale v. Miles, 5 Conn. 331; Posey v. Decatur Bank, 12 Ala. 802; 10 Ad. & E. 616.

2 Story Prom. Notes, § 235; Woodworth v. Bank of America, 19 Johns. 391.

3 See Taylor v. Snyder, 3 Denio, 145, and cases cited passim; Wheeler

that the rule in this respect is a strict one; in other words, that a demand must be made or a proper reason shown for its omission.1

What has been said above applies, mutatis mutandis, to a bill of exchange. And if the maker or acceptor had neither place of business nor residence in the city or town in which the paper is payable, it is sufficient, in order to charge subsequent parties, that the holder was there on the day of payment ready to receive the money.2

A bill or note is often made payable, by its terms, at a particular bank or other place specially designated on its face; and when this is the case, the rule appears fairly settled that, in order to charge subsequent parties to the trustment the paper must be presented and demand made at that place and none other.3 Yet even here there is some difference in the cases as to the necessity of a demand at the place specified; while it is clear that a presentment and demand there by the holder will be sufficient as against all other sec

v. Field, 6 Met. 290; Foster v. Julien, 24 N. Y. 28; M'Gruder v. Bank of Washington, 9 Wheat. 598; 3 Kent Com. 96; 1 Pars. 450; Redf. & Big. 313-330; Adams v. Leland, 30 N. Y. 309; Duncan v. McCullough, 4 S. & R. 480. And see § 455, post.

1 While it is not in general sufficient to charge a subsequent party that presentment and demand were made in the street, yet under some circumstances demand at the maker's place of business or residence may be treated as waived; and there is even some reason for supposing that, by parol agreement of all the parties concerned, demand might be made at a particular place, though the note is payable generally, a proposition which, however, admits of dispute. See Redf. & Big. 326-329, citing Pearson v. Bank of Metropolis, 1 Pet. 89; Pierce v. Whitney, 29 Maine, 188, and other cases. And see King v. Holmes, 11 Penn. St. 456; Seaver v. Lincoln, 21 Pick. 267; 1 Pars. 359, 372, 424.

2 Boot v. Franklin, 3 Johns. 207; Malden Bank v. Baldwin, 13 Gray, 154. And see 1 Pars. 421-425.

Demand should usually be verbal; but writing will sometimes suffice; however, the demand should be absolutely for payment; and the tenor of the note or bill should not be disregarded. Story Notes, § 242; Langenberger v. Kroeger, 48 Cal. 147. Presentment should be to the party liable, or else his authorized agent. Story Notes, § 251. Demand upon one of a partnership will suffice. Gates v. Beecher, 60 N. Y. 518. Otherwise if they are joint makers. Ib. Demand on one who signs as agent of an undisclosed principal is sufficient. Hall v. Bradbury, 40 Conn. 32.

3 North Bank v. Abbot, 13 Pick. 465; Bank of United States v. Smith, 11 Wheat. 171; Redf. & Big. 329; 1 Pars. 426 et seq., and cases cited; Sanderson v. Bowes, 14 East, 500.

ondary parties to the paper.1 Nor is it necessary that in this case the holder himself, or his agent, should make a formal demand; for if the note is at the place on the day of maturity, ready to be delivered up to any party who may be entitled on payment of the amount due, it is sufficiently dishonored if not taken up before the close of business hours; though the customary and more prudent course for charging secondary parties is to make a formal presentment notwithstanding. The place of date of a promissory note payable generally is only prima facie the place of payment; and the maker's true residence, if the holder knows it, would control so as to oblige him to demand there rather than elsewhere.3 As to a bill of exchange, it is held that this may be accepted payable at a particular place in the city or town in which the acceptor resides, though it be not his place of business.* And it may also be observed that, in case of payment designated "at any bank" in a certain city, the holder may elect the bank at which to present the paper, and that otherwise he is allowed his choice in case of alternatives.5

1 See 1 Pars. 434-436, and cases cited; Bank of United States v. Carneal, 2 Pet. 543; 1 Esp. 3; Bank of Syracuse v. Hollister, 17 N. Y. 46; Wallace v. McConnell, 13 Pet. 136; Meyer v. Hibsher, 47 N. Y. 265; Malden Bank v. Baldwin, 13 Gray, 154.

2 But in a recent case, which will doubtless take its place among the leading American decisions, it is ruled that, although a bill or note payable at a certain bank be in point of fact at that bank when matured, yet if the bank officers have no knowledge of its being there, a sufficient legal presentment and demand, so as to charge secondary parties for nonpayment, cannot take place. Here a letter in which the bill was transmitted was laid, with other mail matter, upon the cashier's desk, but, before being taken up by him, slipped through a crack in the desk and disappeared. It was held that there

was no legal presentment, though the party primarily liable had not funds in the bank and did not mean to pay. Chicopee Bank v. Philadelphia Bank, 8 Wall. 641. See also Huffaker v. National Bank, 13 Bush, 644. And, we may add, any loss of this kind carries a presumption of culpable negligence which may be rebutted, and it rests upon the bank officers to shift the blame if they can. Ib.

Taylor v. Snyder, 3 Denio, 145. Presentment at the maker's former place of business, without inquiry as to his residence, is insufficient. Talbot v. Commonwealth Bank, 129 Mass. 67. But the place of date may be presumed the place for presentment, in absence of other agreement. Wittkowski v. Smith, 84 N. C. 671.

4 Troy City Bank v. Lanman, 19 N. Y. 477. But see comments in Redf. & Big. 329, and cases cited.

5 See 1 Pars. 438-442, and cases