But a certificate of deposit payable to the order of the depositor on a return of the certificate must be presented for payment before an action can be maintained thereon.63 c. Demand necessary to charge drawer and indorsers. It is a well-established rule that an indorser cannot be charged for the nonpayment of a negotiable instrument unless presentment for payment be made to the maker of the note or the acceptor of the bill. The demand of payment is necessary although the in27 Ark. 34; Jones v. Robinson, 11 Ark. 504, 54 Am. Dec. 212. California.- Eastman Washington.- Hardin v. Sweeney, 14 Wash. 129, 44 Pac. 138. 63. Presentment of certificate of deposit. Riddle v. First Nat. Bank, 27 Fed. 503; Pardee v. Fish, 60 N. Y. 265, 19 Am. Rep. 176. In the latter case the distinguishing feature between a promissory note and a certificate of deposit was that in the case of a note the maker might be sued without a demand, but in the case of a certificate of deposit a demand for payment must necessarily be made. But in a recent case, decided in the State of Michigan, holding that a certificate of deposit payable to the order of the depositor on its return properly indorsed is a promissory note, payable on demand, it was held that the institution of a suit upon such a certificate of deposit is a sufficient demand of payment. Beardsley v. Webber, 104 Mich. 88, 66 N. W. 173. v. Turman, New Hampshire.- Piscataqua Exchange Bank v. Carter, 20 N. H. 246, 51 Am. Dec. 217. App. Div. 146, 72 N. Y. Supp. 467. 64. The consequence of not duly presenting a bill or note is that all the antecedent parties are discharged from their liability, whether on the New York.- Pahquioque Bank v. instrument or on the consideration for Martin, 11 Abb. Pr. 291; Ranson v. which it is given. The acceptor or Mack, 2 Hill, 587; Jones v. Haight, 13 maker, however, still continues liable, Johns. 470; Griffin v. Goff, 12 Johns. in most cases presentment not being 6 Am. Rep. 267; Kelly v. Theiss, 65 423; Berry v. Robinson, 9 Johns. 121, necessary for the purpose of charging him. The action itself is a sufficient demand, and that though the instrument be made payable on demand. But though the absence of demand be in general no defense, yet if the acceptor or maker, on action brought, pay without any previous demand, the court will take the question of costs into consideration. Byles on Bills (6th ed.), p. 293. Necessity of demand to charge indorsers. See the following cases: United States.— Magruder v. Union Bank, 3 Pet. 90, 7 L. Ed. 612; January v. Duncan, Fed. Cas. No. 7,217, 3 McLean, 19. Arkansas.- Winston v. Richardson, Ohio.- House v. Vinton Nat. Bank, 1 Handy, 40. Pennsylvania.- Cassidy v. Kreamer, 22 Wkly. Notes Cas. 109, 13 Atl. 744. South Carolina.- Bank of State v. Craft, 3 McCord, 522, 15 Am. Dec. 640; Scarborough v. Harris, 1 Bay, 177, 1 Am. Dec. 609. Texas.- Green v. Elson, 31 Tex. 159. Virginia.- Davis v. Poland, 92 Va. 225, 23 S. E. 292. West Virginia.- Peabody Ins. Co. v. Wilson, 29 W. Va. 28, 2 S. E. 888. 66 68 'dorser has become the personal representative of the maker. As will be seen hereafter, presentment at the place specified in the instrument will be sufficient to bind the indorser although no formal demand of payment has been made of the maker. Since an irregular indorser who places his signature on the instrument in blank before delivery is an indorser,67 a demand of payment inust be made upon the maker to bind him as such indorser. A person indorsing an instrument for the accommodation of the maker of a note cannot be charged without a demand.69 And this is true although the indorsement was made with full knowledge of the insolvency of the maker, and for the sole purpose of giving the note credit and currency. 7.70 But where accommodation indorsers have under their control and management all the assets and business of the person for whose benefit they have indorsed, and whose duty it is to see that funds are provided for the payment of the debt, they are not entitled to notice of dishonor and will not be discharged by a failure to demand payment of the maker.71 Where an instrument is indorsed in payment of or as collateral security for a debt, it has been held that a demand must be made of the maker, and unless due demand can be shown, the indorser will be discharged of his liability." The obligations 65. Magruder v. Union Bank, 3 Pet. (U. S.) 90, 7 L. Ed. 612. 66. See Neg. Inst. L. (N. Y.), § 133 and 135, post. See also Roberts v. Mason, 1 Ala. 373; Gillett v. Averill, ō Den. (N. Y.) 85. But to charge the indorser of a note payable at a bank, it must be shown that the note was at the bank, or that payment of it was demanded there on the day when it fell due. Magoun v. Walker, 49 Me. 419. 67. Neg. Inst. L. (N. Y.), § 114; ante, § 84. 68. Phipps v. Harding, 70 Fed. 468, 17 C. C. A. 203; Hooks v. Anderson, 58 Ala. 238, 29 Am. Rep. 745; Jones v. Goodwin, 39 Cal. 493, 2 Am. Rep. 473; Depauw v. Bank of Salem, 126 Ind. 553, 25 N. E. 705, 10 L. R. A. 46; Webber v. Matthews, 101 Mass. 481; Waterbury v. Sinclair, 26 Barb. (N. Y.) 456. man v. Gueble, 32 La. Ann. 260, 36 Am. Rep. 267; Rea v. Dorrance, 18 Me. 137; Perry v. Green, 19 N. J. L. 61, 38 Am. Dec. 536. In the case of Perry v. Friend, 57 Ark. 437, 21 S. W. 1065, it was held that one not connected with the original consideration of a note, who indorses his name on the back, under that of the payee, after it has been delivered by the maker, not pursuant to an agreement entered into before the note was executed, or to give the maker credit with the payee, but at the latter's request, to enable him to discount the note, is simply an accommodation indorser, and not a maker or guarantor, and is discharged by failure to demand payment and give notice of dishonor to him. 70. Buck v. Am. Dec. 251. 71. Hull v. S. E. 653. Cotton, 2 Conn. 126, 7 Myers, 90 Ga. 674, 16 69. Necessity of presentment to bind accommodation indorser.-French 72. Where instrument is indorsed in V. Bank of Columbia, 4 Cranch payment or as collateral security.(U. S.), 141, 2 L. Ed. 576; Braley Bates V. Ryland, 6 Ala. 668; v. Buchanan, 21 Kan. 274; Thiel- Blanchard v. Boom, 40 Mich. 566; of a drawer of a bill of exchange are similar to those of an indorser of a promissory note, and it is well established that demand must be made of the acceptor before he can be bound upon the bill, as in the case of an indorser of a bill or note.73 An order upon a particular fund, as by one municipal officer upon another, or by an officer of a corporation upon its treasurer, are not subject to the same rule as to presentment for payment as in the case of other commercial paper; and it has usually been held that the drawer of such an order will be liable in an action thereon, notwithstanding the failure of presentment for payment." 74 But this proposition is not universally accepted, for it has been held that such orders are analogous to bills of exchange or checks, and that the drawer cannot be bound thereon unless a demand of payment has been duly made." Where the drawer is an accommodation party he cannot be charged without a demand of payment;76 but this rule does not apply, as will be seen hereafter, to a drawer where the bill was accepted for his accommodation." If a person signs or indorses a negotiable instrument, as a surety Whitten v. Wright, 34 Mich. 92: Shipman v. Cook, 16 N. J. Eq. 251. In the case of Dayton v. Trull, 23 Wend. (N. Y.) 345, it was held that a draft or bill of exchange upon a third person, given by a debtor to a creditor who stipulates that it shall be in full satisfaction of the debt when paid, is prima facie evidence of payment of the original debt; and to rebut such evidence a creditor is bound to show. in an action for the recovery of the original debt, diligence in obtaining payment of the bill, and if not paid notice of nonpayment; or he must excuse the nonpayment and produce the bill to be canceled. In the case of Jones v. Savage, 6 Wend. (N. Y.) 658, a bill was given for goods purchased, and the holder having neglected to present and give notice, it was held that he could neither recover on the bill nor on the count for goods sold and delivered. See also Toby v. Barber, 5 Johns. (N. Y.) 69; Huston v. Weber, 1 Hun (N. Y.), 120. 73. French v. Bank of Columbia, 4 Cranch (U. S.), 141, 2 L. Ed. 576; Bank of Mobile v. Brown, 42 Ala. 108; Hoyt v. Seeley, 18 Conn. 353; Fair v. Peck, 81 Ill. 74; Griffin v. Kemp, 46 Ind. 172; Mize v. Godsey, 16 Ky. L. Rep. 399; Green v. Darling, 15 Me. 139; Bradford v. Fox, 39 Barb. (N. Y.) 203, 16 Abb. Pr. (N. Y.) 51; Gough v. Staats, 13 Wend. (N. Y.) 549; Grange v. Reigh, 93 Wis. 552, 67 N. W. 1130. When a draft on a third person is given in settlement of an antecedent debt, it is the duty of the holder to present it and to give notice of its dishonor if not paid. Manney v. Coit, 80 N. C. 300, 30 Am. Rep. 80. 74. Lyell v. La Peer County, Fed. Cas. No. 8,618; Dennis v. Table Mountain Water Co., 70 Cal. 369; Steele v. Davis County, 2 G. Greene (Iowa), 469; Crawford v. Eilly, Wright (Ohio), 453; Porter v. Dillahunty, 8 Humph. (Tenn.) 570; Gay v. Hazeltine, 18 N. H. 530; Pitman v. Breckenridge, 3 Gratt. (Va.) 127. 75. Goings v. Chapman, 18 Ind. 194; Sinclaire v. Johnson, 85 Ind. 527; Brown v. Teague, 52 N. C. 573; National Shoe & Leather Bank v. Gooding, 87 Me. 337, 32 Atl. 967; Sweet v. Swift, 65 Mich. 90, 31 N. W. 767. 76. Shirley v. Fellows, 9 Port. (Ala.) 300; Sherrod v. Rhodes, 5 Ala. 683; Merchants' Bank v. Easley, 44 Mo. 286, 100 Am. Dec. 287. 77. Neg. Inst. L. (N. Y.), § 140. See post, § 99 (b). or guarantor, it has generally been held that a demand of the maker or acceptor is not necessary to bind the guarantor or surety.78 § 91. When presentment must be made. 66 a. Statutory provision.— The Negotiable Instruments Law provides: "Where the instrument is not payable on demand, presentment must be made on the day it falls due. Where it is payable on demand, presentment must be made within a reason"able time after its issue, except that in the case of a bill of exchange, presentment for payment will be sufficient if made “within a reasonable time after the last negotiation thereof." " The English Bills of Exchange Act requires a note payable on demand, which has been indorsed, to be presented for payment within a reasonable time after its indorsement;80 and in the case of a bill of exchange the presentment must be made within a reasonable time after its issue, in order to render the drawer liable, and within a reasonable time after its indorsement, in order to render the indorser liable.81 The Negotiable Instruments Law also provides that in determining what is a reasonable time," or an "unreasonable time," a regard is to be had to 78. Demand not necessary to bind guarantor. In the case of Donley v. Camp, 22 Ala. 695, 58 Am. Dec. 274, an indorsement on the note made before maturity was in the following form: "I assign and guaranty the within note, to J. C. for value received." It was held to be an absolute and unconditional guaranty of the note at maturity and that no demand of payment or notice of nonpayment was required to bind the guarantor. See also First Nat. Bank v. Babcock, 94 Cal. 96, 29 Pac. 415, 28 Am. St. Rep. 94, in which case it was held, under section 2787, of the Civil Code of California, which provided that a person who indorsed his name on the back of a nonnegotiable note, to give it credit is a guarantor, that he is liable without any previous demand or notice. Tyler v. Waddingham, 58 Conn. 375, 20 Atl. 335, 8 L. R. A. 657; Gage v. Mechanics' Nat. Bank, 79 Ill. 62; Claflin v. Reese, 54 Iowa, 544, 6 N. W. 729; Bowman v. Curd, 2 Bush (Ky.), 565; Read v. Cutts, 7 Me. 186; Parkman v. Brewster, 15 Gray (Mass.), 271; Hungerford v. O'Brien, 37 Minn. 306, 34 N. W. 161; Wright v. Dyer, 48 Mo. 525; Bloom v. Warder, 3 Neb. 476, 14 N. W. 395; Castle v. Rickley, 44 Ohio St. 490; 9 N. E. 136, 58 Am. Rep. 839. In New York, in the case of Allen v. Rightmere, 20 Johns. (N. Y.) 365, 20 Am. Dec. 288, it was held that where the payee of a negotiable note indorsed "For value received, I sell, assign, and guaranty the payment of the within note to A. or bearer," such indorsement is an absolute engagement that the maker will pay the note when due, or that the indorser will pay it himself, and the holder is not bound to show demand of payment of the maker, as in the case of an ordinary indorsement. See also Winchel v. Newcomb, 7 Hill (N. Y.), 416, 42 Am. Dec. 82; Hough v. Gray, 19 Wend. (N. Y.) 202. 79. Neg. Inst. L. (N. Y.), § 131. For same section in statutes of other States see Appendix. Section construed in Merritt v. Jackson (Mass.), 62 N. E. 987; Creteau v. Foote & Thorne Glass Co., 40 App. Div. (N. Y.) 215, 57 N. Y. Supp. 1103. 80. English Bills of Exchange Act, & 86(1). 81. English Bills of Exchange Act, 45 (2). the nature of the instrument, the usage or trade or business (if any) with respect to such instruments, and the facts of the particular case. b. Presentment where instrument is not payable on demand.Where a note is made payable on a certain day it is a general rule, independent of the statute, that a demand must have been made on that day, or due diligence must be shown to make such a demand, in order to bind the parties secondarily liable.82 The Negotiable Instruments Law specifies the time of maturity of a negotiable instrument, and the rule as therein declared is the same in effect as that which exists in many other States which have not yet adopted the law.83 Where the day, or the last day, for doing any act required or permitted to be done by the statute falls on Sunday or on a holiday, it is provided therein that the act may be done on the next succeeding secular or business day.84 This would seem to modify the general rule as applied to the time of maturity of commercial paper. 85 c. Presentment of instrument payable on demand.— Under the rule as it existed in New York prior to the enactment of the statute, a promissory note payable on demand, with interest, was regarded as a continuing security, and the indorser remained liable until the actual demand for payment, and the holder was not chargeable with neglect for omitting to make such demand within any particular time.86 It would seem, however, that 82. Hoffman v. Hollingsworth, 10 Ind. App. 353, 57 N. E. 960; Groatman v. Delheim, 6 Me. 476; Woodbridge v. Brigham, 12 Mass. 403, 7 Am. Dec. 85; Barnes v. Vaughn, 6 R. I. 259; Garland v. West, 68 Tenn. 315. 83. Neg. Inst. L. (N. Y.), § 145. 84. Neg. Inst. L. (N. Y.), § 5. 85. See case cited under section 145 of the Negotiable Instruments Law, post, § 103. 86. Merritt v. Todd, 23 N. Y. 28; Pardee v. Fish, 60 N. Y. 265; Parker v. Stroud, 98 N. Y. 379. Demand note with interest as continuing security. In the case of Wheeler v. Warner, 47 N. Y. 519, the court distinguished the case of Merritt v. Todd, and said: "That case simply decided that an indorser on such a note bearing interest was not discharged, though no demand was made upon the maker until some three and one-half years after the making of the note. That, as between holder and indorser, such a note was not due until demand made. This rule, by the decision itself, was confined to that particular case, nor was it claimed to apply to the rights of holders of such paper as against the maker. We are not disposed to extend the rule there laid down." It was held in this case that a note payable on demand was due forthwith and that the Statute of Limitations began to run against such a note from the time it was issued. See also Howland v. Edmonds, 24 N. Y. 307; Parker v. Stroud, 89 N. Y. 379. In the case of Shutts v. Fingar, 100 N. Y. 539, 3 N. E. 588, while upholding the rule that the Statute of Limitations commenced to run upon a note payable on demand in favor of the maker at its date, it was held that no cause of action arises against the indorser of a promissory note payable upon de |