be closed, if no explanation of such closing is apparent11 and the party has no other place of business or residence in the city which could be ascertained by reasonable enquiry.

In cases "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." (§ 147.) This practically makes a negotiable instrument payable at a certain bank, a draft on that bank and the bank may pay such instrument when due and charge it to the account of the maker or acceptor of the instrument as the case may be, without further authorization. 12

$292. To Whom Presented.

"The instrument must be exhibited to the person from whom payment is demanded and when it is paid must be delivered up to the party paying." (§ 134.)

"Where the person primarily liable on the instrument is dead, 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." (§ 136.) "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 anyone of them, even though there has been a dissolution of the firm." (§ 137.) (§ 137.) "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." (§ 138.)

In case any party to whom presentment should be made cannot be found by the exercise of reasonable diligence, presentment as to him may be dispensed with. (§ 142.)

11 Wallace v. Crille, 46 Wis. 577 (1879); Shedd v. Brett, 18 Mass. 401 (1823); Sulzbacner v. Bank of Charleston, 86 Tenn. 201 (1887).

12 Aetna Nat. Bk. v. Fourth Nat. Bk., 46 N. Y. 82 (1871).

(2) DISHONOR.

§ 293. When an Instrument is Dishonored.

A negotiable instrument is said to be dishonored when it is duly presented for payment and payment is refused or cannot be obtained, or when presentment is excused or is unnecessary or impossible and the instrument is overdue and unpaid. (§ 143.) Also an instrument that must be accepted is dishonored by a non-acceptance when it is duly presented for acceptance. (§§ 221, 247.)

§ 294. Rights of Holder on Dishonor.

When an instrument is dishonored by non-payment or non-acceptance after proper demand therefor, the holder has immediate right of recourse on all the parties secondarily liable thereon (§ 144), provided due notice of such dishonor has been given these secondary parties. By such notice the endorser's liability is changed from that of a mere surety to that of an independent and principal debtor,13 but if due notice of dishonor is not given to the parties secondarily liable, their liability on the instrument is discharged and cannot thereafter be revived.

§ 295. Protest.

Protest, in the ordinary use of the term, includes all the steps necessary to charge the parties secondarily liable on a negotiable instrument. In the more technical use of the term it is restricted to the formal presentment of a negotiable instrument with demand for payment or acceptance, as the case may be, made by a notary public or other qualified person after the dishonor of the instrument, such presentment and demand being formally certified to by the person making the protest presentment.

13 German-Am. Bk. v. Niagara Cycle Co., 13 App. Div. (N. Y.) 450 (1897).

Protest may be made when any negotiable instrument has been dishonored but is not essential to hold the parties secondarily liable save only in the case of foreign bills of exchange. (§§ 189, 260.) A foreign bill of exchange, however, appearing on its face to be such, must be protested on non-acceptance, or, after acceptance, on dishonor by non-payment, as otherwise the drawer and endorsers are discharged. (§ 260.)

In practice protest is almost always employed in case of the dishonor of any negotiable instrument because of its convenience in proving the fact and circumstances of dishonor and of notice to the endorsers. In almost every state of the Union the certificate of the notary making a protest is prima facie

evidence of the facts.

Any party to an instrument may waive protest and in such case is also held to waive presentment and notice of dishonor. (§ 182.)

Protest may be made by a notary public. It may also be made by any respectable resident of the place where the bill is dishonored if made in the presence of two or more credible witnesses. (§ 262.) The demand must be made by the notary public or such other party in person.14 "The protest must be annexed to the bill, or must contain a copy thereof, and must be under the hand and seal of the notary making it, and must specify,—(1) the time and place of presentment; (2) the fact that presentment was made and the manner thereof; (3) the cause or reason for protesting the bill; (4) the demand made and the answer given, if any, or the fact that the drawee or acceptor could not be found." (§ 261.)

The protest must be made or begun on the date of dishonor (§ 263) at the place where the instrument is dishonored, unless the instrument is drawn payable at some other place, when it must be protested at the place where it is expressed to be payable. (§ 264.)

14 Com' Bk. v. Varnum, 49 N. Y. 269 (1872); Ocean Nat. Bk. v. Williams, 102 Mass. 141 (1869).

A bill which has been protested for non-acceptance may be subsequently protested for non-payment. (§ 265.) An accepted bill may be protested before maturity if the acceptor becomes insolvent or has made an assignment for the benefit of creditors. (§ 266.) Protest may be dispensed with by any circumstances which would dispense with notice of dishonor, and delay in protesting is excused under the same circumstances as delay in presentment. (§ 267.)

If a bill is lost or destroyed or is wrongfully detained from the person who is entitled to hold it, protest may be made on a copy or on written particulars thereof. (§ 268.) The loss does not excuse demand and protest.

§ 296. To Whom Notice of Dishonor is Given.

"Notice of dishonor must be given to the drawer and to each endorser" of a negotiable instrument, "and any drawer and endorser to whom such notice is not given is discharged." (§ 160.) The notice of dishonor may be given either to the party himself or to his agent who has authority to act in the matter. (§ 168.) The burden of proving that due notice has been given is on the holder. 15

If any party is dead, the notice must be given to a personal representative of the deceased, or if such representative cannot with reasonable diligence be found, notice may be sent to the last residence or place of business of the deceased party. (§ 169.) If the parties to be notified are partners, notice to any one partner is notice to the firm even though there has been a dissolution (§ 170), but if one of the partners is the maker and the other the endorser of a promissory note, the latter is not liable on his endorsement unless duly notified of the dishonor of the note.16

"Notice to joint parties who are not partners must be given to each of them unless one of them has authority to

15 Marks v. Boone, 24 Fla. 177 (1888).

16 Foland v. Boyd, 23 Pa. St. 476 (1854).

receive such notice for the others." ($171.) "Where a party has been adjudged a bankrupt or is insolvent or has made an assignment for the benefit of creditors, notice may be given either to the party himself or to his trustee or assignee." (§ 172.)

§ 297. By Whom Notice of Dishonor May be Given.

Notice of dishonor may be given by the holder or by any person on behalf of the holder, or by or on behalf of any party to the instrument who might be compelled to pay it to the holder, and who upon paying it would have a right to reimbursement from the party or parties to whom notice is given (§ 161), but notice by a stranger is not sufficient.17

"Where the instrument has been dishonored in the hands of an agent, he may either himself give notice to the party liable thereon or he may give notice to his principal."18 ($ 165.)

"Notice of dishonor may be given by an agent either in his own name or in the name of any party entitled to give notice, whether that party be his principal or not." (§ 162.)

§ 298. Effect of Notice of Dishonor.

Where any party secondarily liable is charged by notice. of dishonor, it inures to the benefit of all parties who have right of recourse against the party notified. (§§ 163, 164.) Thus if a holder merely gives notice to his immediate endorser, this endorser and he alone is held. If, however, this endorser duly notifies the other parties secondarily liable they also are held and are then liable not only to the endorser but to the holder as well.19

"An omission to give notice of dishonor by non-accept

17 Chanoine v. Fowler, 3 Wend. 173 (1829).

18 See § 301.

19 Mead v. Engs, 5 Cow. 303 (1826); Smith v. Poillon, 87 N. Y. 590 (1882).