it appeared that the business day of the bank continued after the close of clearing-house transactions, so as to enable banks holding paper for collection to present those items which had been refused payment through the clearings, it was held that the presentment satisfied the requirements of the statute. (Id.) If a note held by a bank at which it is payable is not paid when due, no presentment and demand of payment are necessary. Dykman v. Northridge, 1 App. Div. (N. Y.) 26. It is sufficient that the note was in the bank on the day it fell due, and that there were no funds of the maker there, or other provision for payment. Hallowell v. Curry, 41 Pa. St. 322. It has been held that the office of a private banker is not a bank within the terms of a note made payable at any bank in Boston." Way v. Butterworth, 108 Mass. 509. As to bank customs see Grand Bank v. Blanchard, 23 Pick. 305, 306; Mechanics' Bank v. Merchants' Bank, 6 Metc. 13, 24; Boston Bank v. Hodges, 9 Pick. 420; People's Bank v. Keech, 26 Md. 521. But now that the statute prescribes the rules as to presentment these matters can no longer be governed by custom; certainly not if the custom conflicts with the statute. Under the statute, paper payable at a bank may be presented there though the bank is closed and in the hands of a receiver, and a demand upon the receiver personally is not necessary. Schlesinger v. Schultz, 110 App. Div. (N. Y.) 356. See also Berg v. Abbott, 83 Pa. St. 177. But compare Hutchison v. Crutcher, 98 Tenn. 421, where it was held that when a national bank has been placed in the hands of a receiver, paper payable at the bank should be presented at the office of the receiver. See section 133, subdivision 1.

The authorities are not agreed upon the point as to the precise time when suit may be brought on a dishonored note payable at a bank, some holding that it cannot be brought until the day after its dishonor, others that it may be brought at any time after the expiration of business hours on the day it is payable, and others still that it may be commenced as soon as payment is refused on that day. Citizens' Bank v. Lay, 80 Va. 436, 440; Church v. Clark, 21 Pick. 309; Blackman v. Nearing, 43 Conn. 60; Humphreys v. Sutcliffe, 192 Pa. St. 336.

§ 136. Presentment where principal debtor is dead.— Where the person primarily liable on the instrument is dead,

(a) and no place of payment is specified, presentment for payment must be made to his personal representative, if such there be, and if with the exercise of reasonable diligence, he can be found (b).

(a) But there must be competent and legal proof of his death, and that the party upon whom the demand was made was such representative; the statement of these facts in the protest is not prima facie proof thereof. Weems v. Farmers' Bank, 15 Md. 231.

(b) The fact that the holder is excused from making presentment under this section does not relieve him from the duty of giving notice of dishonor to the indorser. Reed v. Spear, 107 App. Div. (N. Y.) 144. See this case, also, for what evidence will justify a finding that the holder could not, with reasonable diligence, make presentment to the administrator of the deceased maker.

§ 137. Presentment to persons liable as partners.-Where the persons primarily liable on the instrument are liable as partners, and no place of payment is specified, presentment for payment may be made to any one of them, even though there has been a dissolution of the firm (a).

(a) Gates v. Beecher, 60 N. Y. 518; Cayuga County Bank v. Hunt, 2 Hill, 635; Crowley v. Barry, 4 Gill, 194; Fourth Nat. Bank v. Henschuk, 52 Mo. 207.

§ 138. Presentment to joint debtors.- Where there are several persons not partners, primarily liable on the instrument, and no place of payment is specified, presentment must be made to them all (a).

(a) Gates v. Beecher, 60 N. Y. 518, 523; Union Bank v. Willis, 8 Metc. 504; Arnold v. Dresser, 8 Allen, 435; Willis v. Green, 5 Hill, 232; Benedict v. Schmieg, 13 Wash. 476. In some cases this might be impracticable, but such cases are covered by section 142. The holder of a joint and several note may sue one maker alone upon one cause of action arising out of the note and all makers generally upon another such cause of action. Davis v. Schmidt, 126 Wis. 461.

$139. When presentment not required to charge the drawer.- Presentment for payment is not required in order to charge the drawer where he has no right to expect or require that the drawee or acceptor will pay the instrument (a).

(a) But presentment is not dispensed with merely because the drawer has no funds in the hands of the drawee. Life Insurance Company v. Pendleton, 112 U. S. 708; Dickens v. Beal, 10 Pet. 572; Welch v. B. C. Taylor Mfg. Co., 82 Ill. 581; Kimball v. Bryan, 56 Iowa, 632; Kingsley v. Robinson, 21 Pick. 327. It is sufficient if the drawer had a reasonable expectation that the bill would be paid; or if there was an agreement between him and the drawee that the latter should accept, or a course of dealing between them by which the drawee was accustomed to accept without reference to the state of the mutual account. See cases cited above. Presentment of a check is excused where the making of the check was a fraud upon the part of the drawer, he having no funds in the bank, and no ground for a reasonable expectation that it would be paid. Beaureguard v. Knowlton, 156 Mass. 395, 396.

§ 140. When presentment not required to charge the indorser.- Presentment for payment is not required in order to charge an indorser where the instrument was made or accepted for his accommodation, and he has no reason to expect that the instrument will be paid if presented.

§ 141. When delay in making presentment is excused.Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct or negligence (a). When the cause of delay ceases to operate, presentment must be made with reasonable diligence.

(a) Windham Bank v. Norton, 22 Conn. 213; Pier v. Heinrichsoffen, 67 Mo. 163. In these cases the delay was caused by

miscarriage in the mail. See section 176. Sickness of the holder of the note is not an excuse for the failure to present it at the proper time, unless it was not only sudden, but so severe as not only to prevent him from making the presentment and giving notice of non-payment himself, but from employing another person to do it; and then it must be shown that the proper steps were taken as soon as the disability was removed. Wilson v. Senier, 14 Wis. 380. Where the facts are not disputed the question of due diligence is one of law for the court; but if there is a dispute as to the facts, the question is for the jury. Belden v. Lamb, 17 Conn. 451.

§ 142. When presentment may be dispensed with.- Presentment for payment is dispensed with:

1. Where after the exercise of reasonable diligence presentment as required by this act cannot be made (a); 2. Where the drawee is a fictitious person;

3. By waiver of presentment express or implied (b).

(a) The burden is upon the holder to show that due diligence was used. Eaton v. McMahon, 42 Wis. 484. It is the duty of a holder to give the notary information as to the residence of the drawer and indorser; and if this is unknown to the holder, he must inquire of those whose names are upon the note or bill as to the residence which he does not know. If there are none such, he must use due diligence to ascertain them. It will not do for the holder to put the note or bill in the hands of the notary at the place where it was drawn without furnishing him any information as to the residence of the maker, or that of the indorser, and then for the notary, without inquiry from him, to return the note without demand or notice. The holder is the one most likely of all persons to know the place of residence of those to whom he looks for payment, and due diligence requires that he should give the information to his agent, whom he employs to make demand from the maker and give notice to the indorser; or, if he neglects to do so, that the agent should require of him where the parties reside. Smith v. Fisher, 24 Pa. St. 222. When the facts are undisputed, the question of diligence is for the court. Fisher, 24 Pa. St. 222; Wheeler v. Field, 6 Metc. 290. ment is not dispensed with by the insolvency of the

Smith v. Presentmaker or

drawee. Reincke v. Wright, 93 Wis. 368; Hawley v. Jette, 10 Oregon 31; Bensonhurst v. Wilby, 45 Ohio St. 340; Jackson v. Richards, 2 Caines, 343; Armstrong v. Thurston, 11 Md. 148.

(b) The waiver may be made either during the currency of the note or after its maturity. Power v. Mitchell, 7 Wis. 161. And evidence of contemporaneous facts and circumstances, at the time of the transaction, may be shown in evidence, in order to ascertain whether or not a waiver was intended. Baumeister v. Kuntz (Fla.), 42 So. 886. The waiver may be made either verbally or in writing. Smith v. Lownsdale, 6 Oregon 78. Nor is it necessary that the waiver should be direct and positive. It may result from implication and usage, or from any understanding between the parties which is of a character to satisfy the mind that a waiver is intended. Cady v. Bradshaw, 116 N. Y. 188, 191. The assent must be clearly established, however, and will not be inferred from doubtful or equivocal acts or language. Ross v. Hurd, 71 N. Y. 14. But any language is sufficient, which is calculated to induce the holder to forbear taking the necessary steps to charge the indorser. Torbert v. Montague, 38 Colo. 325; Moyer & Brothers' Appeal, 87 Pa. 129; Boyd v. Bank of Toledo, 32 Ohio St., 526. Where the indorser requests the holder to extend the time of payment and promises to let his name remain on the instrument, this will amount to a waiver of presentment and notice of non-payment. Cady v. Bradshaw, 116 N. Y. 188, 191, 192. So, a telegram sent to the collecting bank requesting it to pay the note and save protest and draw, in reply to an inquiry made of the firm by such bank, is a sufficient waiver. Seldner v. Mount Jackson National Bank, 66 Md. 488. So, where an indorser admits his liability at the time of the maturity of the note and accompanies such admission with an offer to "arrange the matter" with the holders, and thereafter by his conduct shows that he regards himself as liable, and asks for indulgence. Moyer & Brothers' Appeal, 87 Pa. St. 129. So, where a note is a short time before the day of its maturity, presented to an indorser, and the latter then promises that if the note is suffered to run he will pay it whenever payment is called for. Hale v. Danforth, 46 Wis. 554. And so, where, in response to inquiry by the holder, the indorser told him that it would be of no use to call upon the maker. Barker v. Parker, 6 Pick. 80. A waiver of notice merely