dorsers. The indorser or drawer agrees to pay the note or bill on demand, upon the condition that it be duly presented to the maker or drawee upon maturity, at the place designated, and payment thereof demanded, and if refused, due notice of the dishonor be given to such indorser or drawer. The death or insolvency of the maker or acceptor will be no excuse for the omission to demand payment at the time the note or bill becomes due. The indorser may waive presentment, demand, and notice. Waiver of proof necessary to establish a particular fact, is equivalent to an agreement to admit that fact on the trial. A waiver may be made in writing, at the time of the indorsement. Evidence of such a waiver is admissible under the allegation of due demand and notice. This waiver is generally made in the following form: Presentment, demand, and notice waived. JOHN B. ASTOR. 7. Although a promise which is presumptive evidence of waiver need not be pleaded specially, yet a promise the holder extend the time of payment? If he does, what is the effect? What does the indorser or drawer agree to do? If the maker or acceptor have died, or have become insolvent? What may the indorser waive? To what is waiver of proof necessary to establish a fact equivalent? When may a waiver be made in writing? Under what allegation is evidence of such a waiver admissible? What is the form of such waiver ? 7. If the promise be relied on to establish the waiver of an acknow which is relied on to establish a waiver of an acknowledged omission, after the omission to give notice has occurred, must be pleaded specially. The waiver before the time to give notice is equivalent to due notice. The waiver of an omission which has actually occurred is not equivalent to due notice, and must be pleaded specially. When the indorser has waived an actual omission of the holder to give notice, the facts constituting the cause of action are set forth in the complaint as follows: (Title.) (Commencement.) I. That at the city of New York, on the 8th day of June, 1865, the defendant, William Blake, made his promissory note, in writing, and delivered the same to defendant, John B. Astor, of which the following is a copy: Indorsed, $500. NEW YORK, June 8, 1865. 'One month after date, I promise to pay John B. Astor, or order, five hundred dollars, value received. "WILLIAM BLAKE." II. That defendant, John B. Astor, indorsed the same for value, and delivered the same so indorsed. III. That thereafter the defendant, John Foster, indorsed the same for value, and delivered the same so indorsed; and thereafter, and before its maturity, it lawfully came to the possession of plaintiff for value. IV. That at maturity said note was duly presented for payment, but was not paid. V.. That the defendants, John B. Astor and John Foster, thereafter severally waived the laches of plaintiff in not giving them due notice thereof, and severally promised to pay said note. VI. That plaintiff is now the lawful owner and holder of said note, and that there is due to him thereon, from the defendants, the sum of five hundred dollars, with interest thercon from the 11th day of July, 1865. (Demand.) In order to make a waiver obligatory upon the party ledged omission? What waiver is equivalent to due notice? What waiver is not equivalent to due notice? Which must be pleaded specially? When the indorser has waived an actual omission of the holder to give notice, how are the facts constituting the cause of making it, the waiver must be made with a full knowledge that there has been a want of due notice of the dishonor. The waiver presupposes that notice has not been given, and that the holder has no excuse for the omission. A part payment of a note or bill, not explained, will be held to be a sufficient waiver of due notice. Vague and uncertain language will not be deemed sufficient. 8. An excuse for omission of due notice is, in its nature, a justification for such omission, without any consent on the part of the indorsers. The following have been decided to be sufficient excuses for the omission of due and regular notice of dishonor: 1. When the notice is prevented by inevitable accident or overwhelming calamity; 2. When prevented by the prevalence of a malignant disease, which interrupts the operations of trade and business; 3. Occurrence of war, blockade, invasion, or occupation of the place, where the notice is to be served, by an enemy; 4. Public prohibition of commerce between the countries; 5. The absconding of the party entitled to notice, or having no fixed place of residence, or being unknown or unfound, after reasonable inquiry; 6. That the note or bill was given for the accommodation of the indorser only, and that he must ultimately pay the same; 7. That there was an agreement on the part of the indorser to pay the note or bill at maturity, at all events; 8. That the indorser has received security from the maker, in part or in full, for his liability there on;-if the security be in full, the indorser is bound without notice; if in part only, he is bound to the extent of his security; 9. Receiving money from the maker to take up the note; 10. The agreement of the indorser to action alleged in the complaint? In order to make the waiver obligatory on the person making it, with what knowledge must it be made? What does the waiver of an omission presuppose? What effect does the part payment of a note or bill have? If the waiver be made in vague and uncertain language? 8. What is the nature of an excuse for omission of due notice? What have been decided to be sufficient excuses for the omission of due and regular notice of dishonor? dispense with notice; 11. Direction from the indorser to the maker not to pay the note. There 9. When a note is made payable to payee, or order, it can only be made negotiable by the order of the payee. If the payee be a partnership, and the partnership is dissolved during the lifetime of the partners, neither partner can afterwards indorse in the name of the firm. must be a joint indorsement of all the partners in case of dissolution: the implied authority of one partner to act for all is gone. In case of the death of one partner, the survivor may indorse. A note may be transferred by the assignment of the payee; but that will not render it negotiable, as between the maker and payee. It will be subject to all the set-offs and equitable defences between the original parties, into whose hands soever it may pass. If the note is made payable to payee, or bearer, the payee may transfer his right therein by mere delivery. Every holder, however, in passing a note, either with or without his indorsement, assumes certain obligations and responsibilities. He warrants, by implication-1. That he is the lawful holder; 2. That he has a valid title; 3. That he has a right to transfer it by delivery; 4. That it is genuine, and not forged; 5. That he has no knowledge of any fact which would render the instrument worthless. Any concealment of these facts would be a manifest fraud. 9. When a note is made payable to payee, or order, how only can it be made negotiable? If the payee be a partnership, and the partnership be dissolved during the life of the partners? How must it be indorsed? What ceases with the dissolution? In case of the death of one partner? If a note payable to payee, or order, be assigned by the payee, what is the effect? To what will it be subject? If the note is made payable to payee, or bearer, how is it transferred? What obligations does every holder assume in transferring a note? What is a concealment of any of these facts? CHAPTER XCVII. THE TIME TO DEMAND PAYMENT. 1. As to the time when a note payable on demand shall be presented for payment, and notice of dishonor given to the indorser, in order to bind him, great uncertainty had existed until the question came up in the New York Court of Appeals, in 1861, in the case of Merritt against Todd, reported in the New York Reports, vol. xxiii., p. 28. The opinion of the court in this case was delivered by Chief Justice Comstock, in which opinion his associate justices, Selden, Denio, Davis, Mason, and James concurred. It seems that one rule had formerly been applied to this class of cases-viz., that "payment of such notes should be demanded within a reasonable time." The court, in this case, endeavored to discover an intelligible principle by which this class of cases could be decided. 2. They discovered two principles, directly antagonistic to each other, one of which would furnish a clear and precise rule for the determination of this question. ChiefJustice Comstock, in his opinion, says: "We have these two principles, directly antagonistic to each other, by one or the other of which questions like the one before us ought to be determined. We say this, because there is no intermediate ground to stand upon. A note payable on demand is either a continuing security, upon which a de 1. As to the time when a note payable on demand shall be presented for payment, and notice of dishonor given to the indorser, in order to bind him, what formerly existed? When did this question come up in the New York Court of Appeals? By whom was the opinion of the court given? What associate justices concurred in his opinion? What had been the rule as to the time of making demand? What did the court discover in this case? 2. Are these two principles in harmony with each other? Is there any middle ground to stand upon? If the note payable on demand be a |