and where 2dly. By of presentment. A person who had guaranteed the due payment of a & to whom, bill may be released from responsibility by the neglect of the holder the duly to present it for payment, if he can show that he was thereby presentment judiced. pre should be made. Presentment for payment, when necessary, must be made by the holder of the bill, &c. or an agent, competent to give a legal receipt for the money, to the person in general on whom it is drawn; and a person in possession of a bill payable to his own order, is a holder for this purpose, though it was once thought he had only an authority to indorse. It is not necessary that the demand should be personal, 260 it being sufficient if it be made at the house of the acceptor; and it is the same thing in effect, if it be made at the place appointed by him for payment, or in some cases of his agent who has been used to pay money for him; and if a banker's note be made payable at Tunbridge, and also at London, the holder has a right to present it at either place, and if payment be refused at the more distant place, London, it is no defence to prove, that if payment had been demanded at the nearer place, Tunbridge; the note would have been paid.* Before the recent act 2 Geo. 4. c. 78. it was held, that when a bill is made, or accepted, payable at a banker's, or at any particular place, or by a particular person not party to the instrument, in order to charge the drawer and indorsers, the presentment for and demand of payment should be made at such place, or on such person; and in default thereof, the drawer and indorser, and other parties transferring the bill, would in general be discharged from their obligations, and that if such presentment were made, and payment were refused, though in general notice must be given, yet it will be unnecessary to make another presentment to the acceptor in person, for the contract and undertaking that there should be cash, and that the bill should be paid there, is broken; and though the person, at whose house the The Duke of Norfolk v. Howard, 2 Quære see Phillips v. Astling, 2 Taunt. Per Lord Kenyon, in Coore v. Callaway, 1 Esp. Rep. 115. • Poth. pl. 129. f v. Ormston, 10 Mod. 286. Smith v. M'Clure, 5 East, 476. 8 Brown v. McDermot, 5 Esp. Rep. 265, 6. Cromwell v. Hynson, 2 Esp. Rep. 512. acc. Sed vide Duke of Norfolk v. How ard, 2 Show. 235. Brown v. M'Dermot, 5 Esp. Rep. 265. Indorsee against indorser, it was held in this case to be sufficient to demand payment at the usual place of residence of the acceptor, and if it is not then paid it is sufficient to entitle the party to proceed against the indorser. The plaintiff's counsel called a witness, who proved that he carried the bill to the house described as the place where Smithson the acceptor lived, but that there were no orders left, and the bill was not paid, but it appeared that the witness never saw the acceptor. Garrow, for the defendant, objected to the evidence, and that the plaintiff should be called, first, on the ground that the promise to pay was not made to the plaintiff, the indorsee himself, which he contended to be necessary; and secondly, that the hand-writing of the acceptor should be proved, and actual demand on him. Lord Ellenborough, in summing up, told the jury, that is was necessary to prove a demand of the bill and non-payment by him; but that if a bill was payable at a certain house it was sufficient to demand the money there: that had been done here, for it was the duty of the drawee of a bill to leave provision for the payment of it. Verdict for the plaintiff. Saunderson v. Judge, 2 Hen. Bla. 509, The Governor and Company of the Bank of England v. Newman, 12 Mod. 241. Phillips v. Astling, 2 Taunt. 206. Bayl. 95, 6. 313. Beeching v. Gower, Holt, C. N. P. Saunderson v. Judge, 2 Hen. Bla. 509. Parker v Gordon, East, 386. Ambrose v. Hopwood, 2 Taunt. 61. 2 Campb. 550. Mar. 106, Saunderson v. Judge, 2 Hen. Bla. 509. Parker v. Gordon, 7 East, 385. Com, Dig. tit. Merchant, F. 7. and where instrument is made payable, may not be a party to it, and consequently 2dly. By not personally liable; yet an answer by him, or at his house, as to the & to whom, payment or non-payment of it is sufficient. And in the spirit of this and prerule it has been decided, that if the person at whose house the bill, &c. sentment is made payable, be himself the holder of it, it is a sufficient demand should be of payment for him to inspect his books, and sufficient evidence of a made. refusal, to find upon such inspection, that he had no effects in his hands;o and where a bill or check is payable at a banker's, a presentment to their clerk at the clearing-house is sufficient. The above-mentioned act in terms declares that unless the particular bonds pointed out by the statute are used to qualify the acceptance, it shall be deemed a general acceptance to all intents and purposes, and therefore unless those words are used proof of a presentment to the drawee himself, or at his own house, will suffice even against the drawer and indorsers. (334) If the drawee have merely removed from the place in which the bill represents him to reside, it is incumbent on the holder to use every reasonable endeavour to find out whether he hath removed, and in case he succeed in such attempt, to present it for payment at that place.(2) But if the drawee has never fived at the place of address, or has absconded, that circumstance will sufficiently excuse the holder from not making any further inquiries after him; and if he have left the country on any account, presentment and demand of payment of his wife, or agent, at the place where he formerly resided, would be sufficient. (3) Stedman v. Gooch, 1 Esp. Rep. 4. Saunderson v. Judge, 2 Hen. Bla. 509. Bayl. 96. P Reynolds v. Chettle, 2 Campb. 596. Robson v. Bennett, 2 Taunt. 388. et post, p. 272. Robson and Waugh v. Bennett and another, 2 Taunt. 388. In this case it was established, that by the practice of the London bankers, if one banker who holds a check drawn on another banker, presents it after four o'clock it is not then paid, but a mark is put on it to show that the drawer has assets, and that it will be paid; and checks so marked have a priority, and are exchanged or paid the next day at noon, at the clearing-house; held, that a check presented after four, and so marked, and carried to the clearing-house the next day, but not paid, no clerk from the drawee's house attending, need not be presented for payment at the banking-house of the drawee, and that such a marking un der this practice amounts to an accept- 9 Collins v. Butler, 2 Stra. 1087. Bayl. 95. Collins v. Butler, 2 Stra. 1807. The Anon. Ld. Raym. 743. Bayl. 95. (334) It seems that where no place of payment is mentioned in a note executed in a foreign country, parol evidence is admissible to show at what place it was agreed to be paid, and thus to give effect to the lex loci contractus. Thompson v. Ketcham, 4 John. Rep. 285. If the maker of a note appoint a particular place where the demand of payment of it is to be made, a demand there is sufficient to charge the indorser. State Bank v. Hurd, 12 Mass. Rep. 172. (2) The indorser of a note will be discharged if demand and notice be not proved, although the note was drawn by a firm which is since dissolved. Butler v. Denham, 2 M Cord, 350. (3) Where the maker of a note has removed into another state or jurisdiction, subsequent to the making of the note, a personal demand on him is not necessary; it is sufficient if presented at his former residence. Ma Gruder v, Bank of Washington, 9 Wheat. 598. 2dly. By If at the time of presentment, the drawee be dead, the holder should & to whom inquire after his personal representative, and present the bill to him; and where and in case there be no representative, should demand payment at the sentment house of the deceased. "(335) the pre should be made. be present ed for pay ment. It is sufficient to require payment of the person on whom the bill is drawn, and it is unnecessary, in case of default of payment, to make any demand on the drawer, previously to an action against the indorser.1 3dly. Time The time when a bill or note, &c. ought to be presented for paywhen a bill, ment, when it is payable at a certain time after it is drawn, as in the &c. should case of a bill payable after date, or after sight, or at usance, depends (on the terms of the instrument itself;y and when no time of payment is expressed, as in the case of bills payable at sight, or on demand, the time when presentment for payment should be made, depends on the local situation of the parties, and other circumstances, necessarily varying in every particular case. It was once thought, that the propriety of a presentment for payment with respect to the time when it should be made, was, in all cases, a question for the determination of a jury; but the decisions of juries having been found to be very much at variance from each other, and consequently to have rendered the commercial law in that respect very uncertain, and the usage of merchants having been long since established, it is now settled to be the province of the court to determine the time when a presentment ought to be made.a The circumstance of the holder having received a bill very near the time of its becoming due, constitutes no excuse for a neglect to present it for payment on maturity, for he might renounce it if he did not choose to undertake the duty, and send the bill back to the party from whom he received it; but if he keep it he is bound to use reasonable and due diligence in presenting it: and therefore where the [263] plaintiff in Yorkshire, on the 26th of December, renewed a bill of exchange, payable in London, which became due on the 28th, and kept it in his own hands until the 29th, when he sent it by post to his bankers in Lincoln, who duly forwarded it to London for the presentment, and (335) It has been decided in Massachusetts, that if the maker of a note die, and an administrator be appointed before it becomes due, no demand on the administrator is necessary to charge the indorser, so that notice of the death and non-payment be duly given to the indorser, unless the maturity of the note happens more than a year af ter the maker's death. This decision is grounded upon some supposed material difference between the situation of an administrator in Massachusetts and that of one in England. Hall v. Burr, 12 Mass. Rep. 86. the bill was dishonoured, it was held that the plaintiff had by his laches 3dly. Time lost his remedy against the drawer and indorsers." when the presentmentshould When a bill, &c. is payable at usance, or at a certain time after date be made. or sight, or after demand, it is not payable at the precise time mentioned in the bill, days of grace being allowed; but in the case of bills, &c. payable on demand, no such days are allowed. Before we enter into a particular inquiry when bills, &c. payable at usance after date, after sight, after a particular event, at sight, or on demand, ought to be presented for payment, it may not be improper to make a few observations relative to the mode of computing time in the case of bills in general, and some remarks with respect to the days of grace, and as to usances. When a bill is drawn at a place using one style, and payable on a day certain at a place using another, the time when the bill becomes due must be calculated according to the style of the place where it is payable; because the contract created by the making a bill of exchange is understood to have been made at that place, and consequently should be construed according to the laws of it. In other works it is laid down, that upon a bill drawn at a place using one style and payable at a place using another, if the time is to be reckoned from the date it shall be computed according to the style of the place at which it was drawn, otherwise according to the style of the place where it is payable; and in the former case the date must be reduced or carried forward to the style of the place where the bill is payable, and the time reckoned from thence. Thus, on a bill dated the 1st of March, old style, and payable here one month after date, the time must be [ 264 ] computed from the 19th February new style; and on a bill dated the 19th February new style, and payable at St. Petersburgh one month after date, from the 1st of March old style. And although in some cases it has been considered, that when computation is to be made from an act done, the day in which the act is done is to be included," the law relating to bills of exchange is different; for the custom of merchants is settled, that where a bill is payable at usance, or at so many days after sight, or from the date, the day of the date, or of the acceptance, must be excluded; and therefore, if a bill drawn payable Anderton v. Beck, 16 East, 248. Brown v. Harraden, 4 T. R. 141. Leftley v. Mills, 4 T. R. 170. Poth. pl. 14, 15 Mar. 76. As to the old and new style, see Kyd, on Bills, 7, &c. All places where we, in Great Britain, are in the habit of negotiating bills, compute their time as we do, (except that Russia adheres to the old style) by years reckoned in sextiles, from the birth of our Saviour, and divided each into 12 months, and 365 (or in every fourth year 366) days. Bayl. 112. Poth. pl. 155. Beawes, pl. 251. Mar. 102, ante, 93. acc. Kyd. 8. contra. Old style, it is said; still prevails in Muscovey, Denmark, Holstein, Hamburgh, Utrecht, Gueldres, East Friesland, Ge neva, and in all the protestant principalities in Germany, and the cantons of Switzerland. Beawes, pl. 258. Kyd, CHITTY ON BILLS. Glassington v. Rawlins, 3 East, 407. Cramlington v. Evans, 2 Ventr. 308, 310. Castle v Burditt, 3 T. R. 623. Kyd, 6; but see observations of Lord Ellenborough in Watson v. Pears, 2 Campb. 296, from which it appears that in many cases the day is to be excluded; see also Pugh v. Duke of Leeds, Cowp. 714. Glassington v. Rawlins, East, 407. Lester v. Garland, 15 Ves. 454. i Bellasis v. Hester, Ld. Raym. 280. Lutw. 1591. S. C. Coleman v. Sayer, 1 Barn. B. R. 303. Poth pl. 13, 15. Camp bell v. French, 6 T. R. 212. Beawes, pl. 252. Bayl. 113. Kyd, 6. Lester v. Gar land, 15 Ves. 254. acc. May v. Cooper, Fort. 376, contra. Ii present 3dly. Time ten days after sight, be presented on the 1st day of a month, the ter when the days expire on the 11th, and the bill, by the addition of the days of mentshould grace when they are three in number, becomes due on the 14th.* be made. When a bill, &c. is drawn payable at usance, or at a certain time after date, and it is not dated, the time when it is payable must be computed from the day it issued, exclusively thereof. (538) Days grace. of The days of grace which are allowed to the drawee, are so called because they were formerly merely gratuitous, and not to be claimed as a right by the person on whom it was incumbent to pay the bill, and were dependent on the inclination of the holder; they still retain the name of grace, though the custom of merchants, recognised by law, has long reduced them to a certainty, and established a right in the acceptor to claim them, in all cases of bills or notes payable at usance, or after date, after sight, or after a certain event. (338) The number of these days varies according to the custom of the different countries." [265]The following is a list of the days of grace established by the Law Merchant in different countries." m England, Scotland, Wales, Ireland, Bergamo, and Vienna, 5 days. Frankfort, out of the fair time, 4 do. Leipsick, Naumberg, and Augsburgh, 5 do. Venice, Amsterdam, Rotterdam, Middleburgh, Antwerp, 6 do. 8 do. 10 do.P 12 do.9 14 do. Naples, Dantzick, Koningsburg, and France, * Kyd, 6, 7. 1 Hague v. French, 3 Bos. & Pul. 173, Armitt v. Breame, Ld. Raym. 1076. Kyd, 7, ante, 59. m Brown v. Harraden, 4 T. R. 151, 2. Terme de grace, n'est terme de grace que de nom, parce que c'est humanitatis ratione qu'elle la accorde, et pour le distinguer de celui porte par la lettre; il est reellement terme de droit puisque c'est la loi qui le donne. Poth. pl. 187. See Coleman v. Sayer, Barnard Rep. B. R. 303. Vin. Ab. tit. Bills of Exchange; b. 9. Brown v. Harraden, 4 T. R. 151, where it is said to have been once decided, that days of grace are not allowable on inland bills. n Beawes, 260. 1st edit. 449. Bayl. 110. • Beawes, pl. 260. Mar. 94. Kyd, 9. Bayl. 110. P Poth. pl. 139. 4 Kyd, 9. Bayl. 110; but see Hamburgh ordinance, art. 16, 17, and quære if not eleven days; see the next cases. (338) The same rule is recognised in the United States. Rep. 453. Woodbridge v. Brigham, 12 Mass. Rep. 403. Caines' Rep. 343. Henry v. Jones, 8 Mass. By the custom of banks in a particular place, payment of a promissory note may be demandable on the fourth day after the time of payment. Renner v. Bank of Columbia, 9 Wheat. 581. (338) The days of grace as allowed in England, are generally allowed in the United States. At least no traces can be found of a contrary decision, except in the state of Massachusetts, where it is, held, that no days of grace are allowable unless stipulated in the contract itself. Jones v. Fales, 4 Mass. Rep. 245. In New York and in Pennsylvania, the days of grace are certainly allowed. Corp v. McComb, 1 John. Cas. 328. Jackson v. Richards, 2 Caine's Rep. 343. Lewis v. Burr, 2 Caine's Ca. in Err. 195. Bank of North America v. Petit, 4 Dal. Rep. 127. 5 Binn. Rep. 541. A bill drawn payable at five days after sight, and accepted on the first day of a month, is payable on the ninth of the same month, the day of the acceptance being exeluded, and the three days of grace allowed, a demand on the eighth, and protest for non-payment is too early, and therefore void. Mitchell v. Degrand, 1 Mason's Rep. 176. |