rate payee. The objection in this case, however, seems to have been that the indorsement was not made by an authorized agent of the corporation; but the court seems to treat the statute as covering both situations, that is, that the agent had authority to indorse, and that the indorsement was genuine. Under such a statute it has been held in an action upon a note given to a corporation which bears the indorsement of the corporate payee by its treasurer, and in which the defendants put in issue the indorsement of the note to the plaintiff, alleging that the payee named in the note was still the owner of it, that it was not necessary, in order to make a prima facie case for the plaintiff, to prove that the person named as treasurer was the treasurer of the corporation, or that he was authorized to make its indorsement. The note with the indorsement thereon was received in evidence without objection, and is stated to be prima facie evidence of the indorsement in blank by the payee, and of title in the plaintiff as indorsee. Tarbox v. Gorman (1883) 31 Minn. 62, 16 N. W. 466. In National Bank v. Mallan (1887) 37 Minn. 404, 34 N. W. 901, an action by an indorsee of corporate notes, each bearing the indorsement of the corporate payee, in which the answer alleged a want of consideration and denied that plaintiff was the purchaser for value before maturity, the notes with the indorsements thereon were held receivable in evidence, without proof that they were made by some officer or agent of the corporation having authority to make them. The court states that the notes "purport to be indorsed by the corporation, and plaintiff's possession of the notes, establishes prima facie that the indorsements are its genuine indorsements, establishes prima facie the fact that they are in the genuine handwriting of some officer or person having authority to make them, for, without that fact, they were not made by the corporation." This statute was held to dispense 'with the proof of the genuineness of the signature of the payee of the checks, in an action by an indorsee against the drawer thereof,

in Estes v. Lovering Shoe Co. (1894) 59 Minn. 504, 50 Am. St. Rep. 424, 61 N. W. 674. It appeared in this case that the plaintiff in good faith received the checks from the payee, with his name already written upon the backs thereof, giving him in cash their full face value. The court states, apparently in consideration of the fact that the payee personally presented these checks with his name already written upon the back of each, and thus obtained the amount thereof from plaintiff, that it is of the opinion that a check comes within the purview of the statute above set out. Under this statute, the plaintiff makes out a prima facie case by the introduction of the note and the indorsement in evidence. Thorson v. Sauby (1897) 68 Minn. 166, 70 N. W. 1083. Such a statute does not change the burden of proof, but simply permits the holder to make a prima facie case in a way in which he could not have done before the statute was enacted. Murphy v. Skinner (1915) 160 Wis. 554, 152 N. W. 172, Ann. Cas. 1917A, 817.

Alabama. Lake-side Land Co. v. Dromgoole (1889) 89 Ala. 505, 7 So. 444; Berney v. Steiner Bros. (1895) 108 Ala. 111, 54 Am. St. Rep. 144, 19 So. 806.

California. Bank of California v. Mott Iron Works (1896) 113 Cal. 409, 45 Pac. 674; Hall v. Thurston (1917) 176 Cal. 738, 171 Pac. 285.

Colorado.-Wyman v. Colorado Nat. Bank (1879) 5 Colo. 30, 40 Am. Rep. 133.

Georgia.-Paris v. Moe (1878) 60

(1840) 3 Ill. 245, 35 Am. Dec. 105; Palmer v. Nassau Bank (1875) 78 Ill. 380; Breier v. Weier (1889) 33 Ill. App. 386; McClory v. Towne (1916) 202 Ill. App. 185.

Iowa.-Kelly v. Ford (1856) 4 Iowa,

140.

Kentucky. McCarty v. Louisville Bkg. Co. (1896) 100 Ky. 4, 37 S. W. 144; Hargis v. Louisville Trust Co. (1895) 17 Ky. L. Rep. 218, 30 S. W. 877 (indorsed without recourse).

Louisiana. Nicholas's Succession (1847) 2 La. Ann. 97.

Maine.-Metcalf v. Yeaton (1864) 51 Me. 198.

Maryland.—Whiteford v. Burckmyer (1843) 1 Gill, 127, 39 Am. Dec. 640, approved on subsequent appeal in (1847) 6 Gill, 1; Merrick v. Bank of Metropolis (1849) 8 Gill, 59; Ellicott v. Martin (1854) 6 Md. 516, 61 Am. Dec. 327; Kunkel v. Spooner (1856) 9 Md. 462, 66 Am. Dec. 332; Herrick v. Swomley (1881) 56 Md. 439.

Massachusetts.-Northampton Bank v. Pepoon (1814) 11 Mass. 288. Mississippi. Emanuel v. White (1857) 34 Miss. 56, 69 Am. Dec. 385. Missouri. Rubelman v. McNichol (1883) 13 Mo. App. 584; Baade v. Cramer (1919) 278 Mo. 516, 213 S. W. 121 (decided under Negotiable Instruments Act); Reinhard v. Dorsey Coal Co. (1887) 25 Mo. App. 350; Nance v. Hayward (1914) 183 Mo. App. 217, 170 S. W. 429 (decided under Negotiable Instruments Act); Chandler v. Hedrick (1915) 187 Mo. App. 664, 173 S. W. 93 (decided under Negotiable Instruments Law); Engles v. Williams (1918) Mo. App., 203

S. W. 671.

New Hampshire. - Newmarket Sav. Bank v. Hanson (1893) 67 N. H. 501, 32 Atl. 774 (note payable to maker, and indorsed by him).

New York.-Bedell v. Carll (1865) 33 N. Y. 581; Martin v. Variety Mfg. Co. (1876) 1 N. Y. City Ct. Rep. 318; Ogilby v. Wallace (1829) 2 Hall, 553. See Gerding v. Welch (1898) 30 App. Div. 623, 51 N. Y. Supp. 1064.

North Carolina. Fuller v. Smith (1859) 58 N. C. (5 Jones, Eq.) 192; Pugh v. Grant (1882) 86 N. C. 39. North Dakota. Commercial Secur. 11 A.L.R.-61.

Texas. Whithed v. McAdams (1857) 18 Tex. 551 (obiter); Myrick Bros. Co. v. Jackson (1906) 44 Tex. Civ. App. 553, 99 S. W. 143.

West Virginia.-Farmers Nat. Bank v. Howard (1912) 71 W. Va. 57, 76 S. E. 122.

Wisconsin.-Milwaukee Trust Co. v. Van Valkenburgh (1907) 132 Wis. 638, 112 N. W. 1083.

England. - Jacobs v. Tarleton (1848) 11 Q. B. 421, 116 Eng. Reprint, 534, 12 Jur. N. S. 517, 17 L. J. Q. B. N. S. 194.

This is true, even though the ownership by plaintiff is expressly denied. by the defendant. Berney v. Steiner Bros. (1895) 108 Ala. 111, 54 Am. St. Rep. 144, 19 So. 806.

At least, possession is prima facie evidence of the plaintiff's right to sue. McCallum v. Driggs (1895) 35 Fla. 277, 17 So. 407; Hogan v. Dreifus (1899) 121 Mich. 453, 80 N. W. 254; Lachance v. Loeblein (1884) 15 Mo. App. 460; Porter v. Gunnison (1854) 2 Grant, Cas. (Pa.) 297; Wells v. Schoonover (1872) 9 Heisk. (Tenn.) 805 (not clear that note was payable "to order").

Seemingly a contrary view was taken in an inferior court decision in New York (Chadwick v. Booth (1861) 13 Abb. Pr. (N. Y.) 249), where it was held that possession of a note indorsed in blank is not evidence of a transfer and delivery by a lawful holder to plaintiff. In Fairthorne v. Garden (1855) 1 Houst. (Del.) 197, an action on a note payable to order and indorsed by the payee, it is held that the law presumes that the holder was properly and rightfully in possession of it, and entitled to sue for and recover the amount of it from the maker

without showing how he came by it, or in what manner he obtained it, “unless he was notified by the maker previous to the trial that the payment of it would be resisted by him for good and sufficient reasons in law."

In Dawsey v. Kirven (Ala.) set forth supra, II. b, in which it seemed to be assumed that the indorser's signature was the genuine signature of the payee, it is stated that the possession of the note by plaintiff, and its production at the trial, it being indorsed in blank by the payee, is prima facie evidence of ownership.

Some courts seem to confine the presumption to the case of the holder of an unmatured negotiable promissory note. Nance v. Hayward (1914) 183 Mo. App. 217, 170 S. W. 429. But in Engles v. Williams (1918) Mo. App.

-

-, 203 S. W. 671, it is stated that "possession of a note properly indorsed, even after maturity, is prima facie evidence of ownership on the part of said holder."

In Bedell v. Carll (1865) 33 N. Y. 581, where the plaintiff proved the genuineness of the signature of the payee, the court, in holding that her possession of the note was thereupon prima facie evidence of ownership, states: "On the trial she produced the note and proved the indorsement of her father, from whom she obtained it. This was enough. The possession of the note at the trial, indorsed in blank by the payee, was prima facie evidence of title, and certainly, to enable the plaintiff to recover, she was not required to show affirmatively the way in which she became the owner. It is true she alleged in her complaint that she acquired the title by gift, but this allegation was unnecessary, and did not cast on her the burden of prov

ing it, or repel the presumption of ownership arising from her possession of the note."

In Hays v. Hathorn (1878) 74 N. Y. 486, an action by the indorsee against the indorser, the genuineness of the indorser's signature seems to be assumed, and it is stated that the production of the paper by the indorsee was prima facie evidence that it had been delivered to him by the payee, and that he had title to it.

Possession of a partnership note regularly indorsed by one of the partners after the dissolution of the firm creates a presumption that he is the owner thereof. Fletcher v. Anderson

(1860) 11 Iowa, 228.

The indorsement of a note payable to a bank by the cashier is prima facie evidence of a legal transfer. Farrar v. Gilman (1841) 19 Me. 440, 36 Am. Dec. 766.

When it has been proven that the note has been paid, the presumption resulting from possession is completely met and answered, and if thereafter the holder asserts that, notwithstanding it has once been paid, it has been again reissued and put in circulation, it is incumbent on him to produce evidence of that fact. He cannot have the benefit of the presumption of title time. Hopkins v. Farwell (1855) 32 resulting from possession a second

N. H. 425.

Under a count for money had and received by the indorser of a note against an indorsee, it is competent to show by parol testimony that the note was held in trust, to be accounted for in a particular manner, but in such case the possession of the note is prima facie evidence that it is the property of the holder. Titcomb v. Powers (1911) 108 Me. 347, 80 Atl. 851. W. A. E.

Statement by Fellows, J.:

Carl Stroebel and William Stroebel are copartners engaged in the hardware business at East Jordan. William Stroebel is the vice president of defendant East Jordan Realty Company, and Claude Mack, who is there engaged in the jewelry business, is its secretary and general manager. On January 28, 1913, the realty company was indebted to the defendants Stroebel in the sum of $1,413.22. On that day it executed its promissory note in the usual form to the Stroebels for this amount, payable on or before five years after date, with 7 per cent interest, payable annually. Subsequently the defendants Stroebel sold the note and indorsed it to one B. E.

Waterman, who later sold it to the plaintiff, indorsing it without recourse to him. Some time before the note was due, the plaintiff left it for collection at the State Bank of East Jordan, of which Mr. Suffern was cashier. Mr. Suffern and Mr. Mack talked about the note before it was due, and Mr. Mack informed Mr. Suffern that they could pay the interest, but could not pay the principal.

January 28, 1918, the day the note was due, was fuelless day, and the business places at East Jordan were closed. Mr. Suffern had arranged with Mr. Mack to come to Mr. Mack's store, two doors from the bank, that day, on business connected with the realty company.

They met at Mr. Mack's store. While there, Mr. Suffern said to Mr. Mack that the note was due, and Mr. Mack told him again that they could pay the interest, but could not pay the note. Mr. Suffern testifies:

I went in there to keep an appointment with him for looking over the realty company's books, or to talk with him about it, a report that he wanted to make, and when I was there I just told him that the note was due, which is all the demand we ever make. We don't go at it very rough when we ask payment on anything.

"Why, we had talked this note over several times, and neither one of us considered it necessary to be formal about the conversation. We both knew what note we had in mind all right."

At this time the note was at the bank, and Mr. Mack did not demand its production, and it was not produced by Mr. Suffern. Mr. Mack's refusal to pay was based entirely on the lack of funds. There is testimony that notice of dishonor of the note was given to defendants the following day. The testimony was somewhat in conflict, but the trial court disposed of the case on the ground that plaintiff had failed to make a case against defendants Stroebel. We must therefore accept the testimony most favorable to the plaintiff, and shall not set out all the conflicting claims on the facts.

This action was brought against the realty company and the Stroebels. Judgment passed by default against the company and for the defendants Stroebel, the trial judge holding that the presentment and demand for payment were insufficient to charge the indorsers. There are numerous assignments of error, but counsel for plaintiff quite properly say in their brief:

"The case, as presented, has two questions:

"(1) Did the conversation between Mr. Mack and Mr. Suffern constitute a legal presentment and demand of payment of the note, exhibit A?

"(2) Was it necessary that Mr. Suffern actually exhibited the note to Mr. Mack when demand was made, its exhibition not being requested at the time, and payment being refused solely on the ground of lack of funds?"

Messrs. Clink & Williams, for plaintiff in error:

No particular form of words is necessary to make a legal demand of payment; it is sufficient if it appears that the parties understood each other, and understood that payment was requested upon the note.

Hodges v. Blaylock, 82 Or. 179, 161 Pac. 396; Gregg v. George, 16 Kan. 546..

The actual exhibition of the note was not necessary.

8 C. J. 561; Freudenberg v. Lucas, 38 Cal. App. 95, 175 Pac. 482; Hodges v. Blaylock, 82 Or. 179, 161 Pac. 396; Gallagher v. Roberts, 11 Me. 489; Maine Bank v. Smith, 18 Me. 99; King v. Crowell, 61 Me. 244, 14 Am. Rep. 560; Legg v. Vinal, 165 Mass. 555, 43 N. E. 518; Waring v. Betts, 90 Va. 46, 44 Am. St. Rep. 890, 17 S. E. 739; Porter v. Thom, 167 N. Y. 584, 60 N. E. 1119, affirming 40 App. Div. 34, 57 N. Y. Supp. 479; Gilpin v. Savage, 60 Misc. 605, 112 N. Y. Supp. 802, 118 N. Y. Supp. 1108, 132 App. Div. 948, Selover, Neg. Inst. 2d ed. § 193; Lockwood v. Crawford, 18 Conn. 361; Tredick v. Wendell, 1 N. H. 80; Byels, Bills, Am. ed. 196; 1 Parsons, Notes & Bills, 230, note, and 367; Freeman v. Boynton, 7 Mass. 483; Musson v. Lake, 4 How. 262, 11 L. ed. 967; Draper v. Clemens, 4 Mo. 52.

Messrs. Dwight L. Wilson and A. B. Nicholas, for defendants in error Stroebel:

While the law does not set forth the exact words which must be used in demanding payment of a negotiable instrument, it does contemplate a certain degree of formality; and a mere statement that "it was due to-day," not accompanied with exhibition of the note, cannot be construed as a demand of payment.