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:

I. 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. Smith v. Fisher, 24 Pa. St. 222; Wheeler v. Field, 6 Metc. 290. ment is not dispensed with by the insolvency of the maker or

Present

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

does not excuse demand of payment. Berkshire Bank v. Jones, 6 Mass. 524; Low v. Howard, 11 Cush. 268, 270.

An agreement to waive demand and notice is not within the statute of frauds; it is not a new contract, but only a waiver absolutely or in part of a condition precedent to liability. Taunton Bank v. Richardson, 5 Pick. 436; Barclay v. Weaver, 19 Pa. St. 396; Power v. Mitchell, 7 Wis. 159, 166. And from the nature of the indorser's contract no new consideration is required to support the waiver whether given before or after the maturity of the paper. Burgettstown Nat. Bank v. Nill, 213 Pa. St. 456. The facts constituting the waiver must be specifically pleaded. Galbraith v. Shepard, 43 Wash. 698. As to waiver where the maker has transferred all his property to the indorsee, see Brandt v. Mickle, 26 Md. 436; Mechanics' Bank v. Griswold, 7 Wend. 165; Moore v. Alexander, 63 App. Div. (N. Y.) 100; Brown v. Maffey, 15 East 222; Bond v. Farnham, 5 Mass. 170. For cases construing waivers see Parr v. City Trust Company, 95 Md. 291, 300301; Toole v. Crafts, 193 Mass. 110; Baumeister v. Kuntz (Fla.), 42 So. Rep. 886.

§ 143. When instrument dishonored by non-payment.The instrument is dishonored by non-payment when:

1. It is duly presented for payment and payment is refused or cannot be obtained; or

2. Presentment is excused and the instrument is overdue and unpaid.

§ 144. Liability of person secondarily liable, when instrument dishonored.- Subject to the provisions of this act, when the instrument is dishonored by non-payment, an immediate right of recourse to all parties secondarily liable thereon, accrues to the holder (a).

(a) When the indorser's liability has been fixed by demand and notice of dishonor, he becomes an independent and principal debtor, and does not stand in the position of a mere surety. German-American Bank v. Niagara Cycle Co., 13 App. Div. (N. Y.) 450; First Nat. Bank v. Wood, 71 N. Y. 405, 411. Though the holder has received collateral from the maker, the law implies no

contract to proceed on the collaterals before suing the indorser. Buck v. Freehold Bank, 37 N. J. Law, 307. The section does not change the law as to conditional guaranties, as, for example, a guaranty of the collectibility of the instrument, in which case there is no right of recourse against the guarantor until the holder has first made proper effort to collect from the principal debtor, Cowles v. Peck, 55 Conn. 251; Summers v. Barrett, 65 Iowa, 292; for in such case the terms of the express contract exclude the idea of an intention to incur the liability prescribed by the statute.

§ 145. Time of maturity.— Every negotiable instrument is payable at the time fixed therein without grace. When the day of maturity falls upon Sunday or a holiday, the instrument is payable on the next succeeding business day. Instruments falling due or becoming payable (a) on Saturday are to be presented for payment on the next succeeding business day, except that instruments payable on demand may, at the option of the holder, be presented for payment before 12 o'clock noon on Saturday when that entire day is not a holiday (b).

66

(a) The words " or becoming payable" were added by Laws of New York, 1898, chapter 336. This amendment seems to have been made upon the suggestion of some one who feared that the phrase "falling due on Saturday," might not include a case where the date of maturity occurs on a holiday immediately preceding Saturday. The doubt seems to have been based upon a misconception of the correct meaning of the term falling due." In common parlance, we sometimes speak of paper as "falling due on a holiday," meaning by this, that the time for which the note or bill has to run matures on that day; but this language is not strictly accurate; for, as the holiday is dies non, the paper is not, in fact, due on that day, but is due on the day following. In the case mentioned, therefore, paper so maturing may be correctly described as falling due on Saturday." As to paper maturing on Saturday, however, where that day is not a holiday, there is a distinction between "falling due " and 66 becoming payable;" for, in such case, Saturday is not dies non, and, properly speaking, the paper is due on that day, though for the convenience of

bankers and others, the statute authorizes presentment on Monday. This distinction was observed in the section as it stood originally, but the amendment destroys the harmony between the second and third sentences. The only other States which have adopted this change appear to be Missouri and Virginia.

(b) Laws of Mass. March 30, 1895, May 28, 1895; Laws of Maine, 1897, Ch. 259; Laws of New York, 1887, Ch. 289, Ch. 461; Laws of Penn. May 31, 1893; Laws of U. S. Feb. 18, 1893; Laws of N. J. 1895, Ch. 43. This section varies greatly in the different States, both as to`grace and as to paper maturing on Saturday.

§ 146. Time; how computed.- Where the instrument is payable at a fixed period after date, after sight, or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run, and by including the date of payment (a).

(a) See New York Statutory Construction Law, sections 26, 27.

§ 147. Rule where instrument payable at bank.- Where the instrument is made payable at a bank it is equivalent to an order to the bank to pay the same for the account of the principal debtor thereon (a).

(a) Prior to the statute there was some conflict in the decisions as to the authority of a bank to pay a note or acceptance made payable there. The rule adopted in the statute is sustained by the weight of authority; and is also the rule which is most convenient in practice. It is supported by the following decisions: Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; Commercial Bank v. Hughes, 17 Wend. 94; Commercial Nat. Bank v. Henninger, 105 Pa. St. 496; Bedford Bank v. Acoarn, 125 Ind. 582; Home Nat. Bank v. Newton, 8 Bradwell, 563; contra: Grissom v. Commercial Bank, 87 Tenn. 350. In Pennsylvania it is held that where a bank is the holder of a note payable at the banking house, and upon its maturity the maker has a cash deposit in such bank exceeding the amount of the note, which deposit is not specially applicable to a particular purpose, the bank is bound to charge up the amount of the note against the deposit. In such