the instrument were payable generally. But if it was drawn payable at a particular place, then it will be sufficient that it was presented at such place.2

$592. In partnership cases.-Presentment of a bill drawn upon or accepted by, and of a note executed by, a copartnership firm, is sufficient, if made to any one of the members of such firm. And if the signature of the parties entitled to presentment be apparently that of a partnership, as, for instance, if signed "Waller & Burr," presentment to either is sufficient.1

Even after the dissolution of the firm, presentment to any one of the partners is sufficient, for as to the bill or note upon which they are liable, the liability continues until duly satisfied or discharged. As said in Maryland, where presentment of a partnership note was made to one of the firm after dissolution, by Archer, C. J. :" It might be sufficient to say that this dissolution had, by no evidence in the case, been brought home to the knowledge of the holder of the But we do not desire to determine the question on this ground, because we are clearly of opinion that a demand on one of the partners was sufficient, as each partner represents the partnership. Before a dissolution, it clearly would not be necessary to make a demand on both, nor could it be necessary after a dissolution, for the partnership as to all antecedent transactions continues until they are closed."

note.

2

And it has been held that demand on the agent of one

'Ibid.; Story on Notes, § 253; Story on Bills, § 346; see chapter XVII, § 458. Boyd's Adm'r v. City Savings Bank, 15 Grat., 501; Price v. Young, 1 Nott & McC., 438; Philpot v. Bryant, 1 Moore & P., 754; 3 Carr. & P., 244; 4 Bing., 717; Holtz v. Boppe, 37 N. Y., 634; Thomson on Bills (Wilson's ed.), 285. See ante, § 455.

Branch of State Bank v. McLeran, 26 Iowa, 306; Shed v. Brett, 1 Pick., 401; Thomson on Bills (Wilson's ed.), 281.

'Erwin v. Downs, 15 N. Y. (1 Smith), 375.

Crowley v. Barry, 4 Gill, 194; Fourth Nat. Bank v. Heuschuk, 52 Mo., 207; Hubbard v. Matthews, 54 N. Y., 50; Brown v. Turner, 15 Ala. N. S., 632; Cos ter v. Thomason, 19 Ala. N. S., 717.

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Crowley v. Barry, 4 Gill, 194.

partner after dissolution, in the absence of the other partner, was sufficient.

$ 593. Presentment when one member of firm is dead.-In the event of the death of one of the members of the firm to which presentment should be made before the maturity of the bill or note, the presentment should be made to the survivors, and not to the personal representative of the deceased, because the liability devolves upon the surviving partner.

$ 594. Where there are several promisors not partners. -When the note is executed by several joint promisors who are not partners, but liable only as joint and several promisors, it has been held, and, as we think, correctly, that presentment should be made to each, in order to fix the liability of an indorser.3 But a difficulty presents itself which might seem to characterize this doctrine as harsh and unreasonable, and which has caused it to be held that quoad hoc the promisors are to be regarded as partners, and presentment to one equivalent to presentment to all. “Now, suppose,” it has been said, in Ohio, by Hitchcock, J.,“ the makers resided in different States, or in different and distant parts of the same State, how could demand be made of all in order to charge an indorser ? It must be made on the day the note falls due, or, where days of grace are allowed, on the last day of grace. Will it be said that the

* Brown v. Turner, 15 Ala., 832.

· Cayuga County Bank v. Hunt, 2 Hill, 635; Story on Bills, $$ 346-362; I Parsons N. & B., 362.

demand can be made at different and distant places on the same day through the agency of letters of attorney ? I believe such a practice has not been heard of, at least we have found nothing like it in the books.” And the court concluded that they were to be regarded as partners.

$ 595. Distinction between joint promisors and partners.—These views are more plausible than satisfactory, and the argument ab inconvenienti is well presented. But joint promisors are no more partners than joint indorsers. To construe them to be partners is to make a new contract between them, and to vary the condition precedent of the indorser's liability. And although it might be more convenient if they were partners, the inconvenience in enforcing their contract does not change it.

If they were in different places at the maturity of the note, and it could be only presented to one, due diligence would only require its presentment to the others in such time as they could be reached; and the impossibility of presenting to all on the day of maturity, would excuse nonpresentment to those at other places. Such, at least, is our conception of the true solution of the question, and it is borne out by high authority, and certainly by much more satisfactory reasoning than that above quoted."

$ 596. Where the note is several as well as joint, the indorser might be held as indorser of the maker to whom the note was duly presented, as the holder would have the right to treat the note as the several note of each maker. But he would have lost recourse against the indorser as upon the joint note of the co-makers, or the several note of the maker, as to whom no presentment was made or excuse given.

In the event of the death of a joint maker, presentment

2

See 1 Parsons N. & B., 363, note w; Story on Notes, $ 239, and especially $ 255, and note 2. There seems to be no English precedent on the question.

* Story on Promissory Notes, $ 255, note 2.

should be made to the survivor, upon whom the debt de volves. If the note were several also, it might be different, as the holder is at liberty to elect “upon whom he will make demand," 1

SECTION III.

TIME OF PRESENTMENT FOR PAYMENT.

$ 597. Upon what day presentment should be made.-In respect to the maker of a note and the acceptor of a bill, it is not important upon what day the presentment is made, provided it be made at some time before the statute of limitations bars action against them. And provided, also, that the note is not made, nor the bill drawn or accepted, payable at a certain place. In such cases only is it desirable that, as respects the maker or acceptor, the bill or note should be presented on the exact day of its maturity; and even in such cases it makes no difference that the presentment was not punctually made on that very day, unless the maker or acceptor should suffer some loss or damage by the delay.

$ 598. In respect, however, to the drawer of a bill and the indorser of a bill or note, it is essential to the fixing of their liability that the presentment should be made on the day of maturity, provided it is within the power of the holder to make it. If the presentment be made before the bill or note is due, it is entirely premature and nugatory, and, so far as it affects the drawer or indorser, a perfect nullity. And if it be made after the day of maturity, it

1

3

Story on Promissory Notes, $ 256. • Chitty on Bills (13 Am. ed.) [*354), 396.

i Parsons N. & B., 373 ; Pendleton v. Knickerbocker Life Ins. Co., 7 Fed. R., 170.

• Griffin v. Goff, 12 Johrs, 423; Jackson v. Newton, 8 Watts, 401 ; Farmers' Bank v. Duvall, 7 Gill & J., 78; Mechanics' Bank v. Merchants’ Bank, 6 Metc., 13.

can, as matter of course, be of no effect, as the drawer or indorser will already have been discharged, unless there were sufficient legal excuse for the delay. The evidence must be distinct as to the promptness of the presentment or the excuse for delay, as the burden of proof is on the plaintiff.

§ 599. If a note be payable in instalments, the presentment should be made on each consecutive instalment as it falls due, as if it were (as in fact it is legally considered) a separate note in itself. It would be different, probably, if the condition were annexed to the note that upon failure to meet any instalment, the whole should fall due, in which case notice should be communicated to the drawer or indorser that the whole sum was due, and the holder looked to him for payment. If no time for payment be named in the bill or note it is payable on demand; and payable "on demand at sight," is equivalent to payable "at sight." "On call," or "when called for," means the same as "on

demand."

§ 600. At what hour of the day presentment should be made. When the bill or note is made payable at a bank, it should be presented during banking hours, the parties executing their paper payable at a particular place, being bound by its usage; and in such case a presentment after banking hours is sufficient. But it is settled that when a

1 Windham Bank v. Norton, 22 Conn., 213.

Robinson v. Blen, 20 Me., 109; Pendleton v. Knickerbocker Life Ins. Co., 7 Fed. R., 170.

374.

'See I Parsons N. & B., 374.

Oridge v. Sherborne, 11 M. & W., 'Thompson v. Ketcham, 8 Johns, 189; Cornell v. Moulton, 3 Denio, 12; Michigan Ins. Co. v. Leavenworth, 30 Vt., 11; Piner v. Clary, 17 B. Mon., 663; Bowman v. McChesney, 22 Grat., 609; Whitlock v. Underwood, 2 B. & C., 157. See ante, §§ 88, 89.

Bowman v. McChesney, 22 Grat., 609.

'Dixon v. Nutall, 1 Cromp. M. & R., 307.

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