§ 125. § 126. Notice when the parties reside in the same place. $127. When notice is personally served. §128. Notice-parties residing in different places. § 130. The place where notice should be sent. § 131. Time within which notice given. § 132. What hour next day is reasonable. § 133. When holidays intervene. § 134. A holder has a day to give notice to predecessor. § 135. Liability of notary in reference to negotiable paper. § 76. Importance of duties in this respect. The confidence placed in notaries public in regard to their duties in making presentment, demand, protest, and notice of protest of negotiable instruments, renders this part of their duty very important. A failure to duly perform these duties may not only 1QUALITIES OF NEGOTIABLE PAPER.-1. It must be open and unsealed. If a seal be impressed and a recognition of the seal be made in the body of the paper, it is then a special contract, in the nature of a bond. Conine v. Junction etc. R. R. Co. 3 Houston, 283; Edwards on Bills, 208. In some States, sealed instruments for the payment of money are placed by statute on the same footing as bills and notes in respect to their negotiability. These States hold that the addition of a seal to a bill or note, payable to order or bearer, does not impair its negotiability. The places in which this is the rule are Colorado, Dakota, Florida, Georgia, Illinois, Kansas, Massachusetts, Nebraska, North Carolina, Ohio, Tennessee. Daniel on Neg. Instruments, Sec. 33. But, in general, the mere affixing a scroll or seal to the name of the drawer or maker, will not affect the negotiable character of the instrument. Anderson v. Bullock, 4 Munf. 442. 2. The engagement to pay must be absolute. There must not be a mere request of a favor, as in the case where a paper read, "Mr. L, please to let the bearer have £7, and place it to my account, and you will much oblige your humble servant": it was held not to be negotiable. Little v. Stackford, 1 Mood. & M. 371. And a mere acknowledgment of a debt due, without any express or implied promise to pay on its face, is not negotiable, as is held in England, in the case of an acknowledgment in the form of IOU. Fisher v. Leslie, 1 Esp. 425. But when result in serious loss to those employing them, but may subject the notary to serious liability. Hence, it will be desirable to point out clearly the duties devolving on notaries in this respect, and the proper manner of performing the important functions intrusted to them. The duties of a notary in respect to negotiable paper may be divided into three divisions, viz: 1. Presentment for acceptance or payment; 2. Making protest; and 3. Giving notice of protest. There is another duty placed. accompanying the acknowledgment there is an obligation to pay interest, and to pay on demand, this is held to give the paper a negotiable character. Currier v. Lockwood, 40 Conn. 348; Sackett v. Spencer, 29 Barb. 180. 3. The event of payment must be certain, or the time must be fixed in some manner. Any condition fixed upon as determining the fact or the time of payment, takes from the paper the quality of negotiability. Thus, an engagement to pay as soon as the crop can be sold, or the money raised from any other source," is not a promissory note. Nunez v. Dautel, 19 Wall. 592. And it will not be payable, if payment is to be only out of a particular fund. Edwards on Bills, 143. But if the event upon which payment depends must happen, it will not deprive the note of negotiability, as where it depends on one's death. Goode v. Colehan, 2 Stra. 1217; Bristol v. Warner, 19 Conn. 7. It will be negotiable if two events are named, one being certain to occur. Stevens v. Blunt, 7 Mass. 240. 4. The bill or note must be payable in a certain amount of money. It will not be negotiable if payable in merchandise, or any specific articles. Chitty on Bills, 132; Lawrence v. Dougherty, 5 Yerg. 453. And if payable in notes, bank-bills, or currency, it will be merely a special contract, and not negotiable paper. McCormick v. Trotter, 10 S. & R. 94; Irvine v. Lowry, 14 Peters, 293; Omohundro v. Crump, 18 Gratt. 703. An author says: "Money alone is legal tender, and only the note which represents money should be held negotiable. It should be expressed simply as payable in dollars, which have a definite signification, fixed by law." Daniel on Neg. Instruments, Sec. 56. In New York, where a note was given for a certain sum "payable in Canada currency," it was held not negotiable: Thompson v. Sloan, 23 Wend. 71; but in Michigan, it was held, a note payable "in Canada currency" is negotiable, it being construed to mean the lawful money in Canada, and this is the more approved doctrine. The amount must be fixed or ascertainable. So, if it be to pay money, "and all fines according to rule," it is not a negotiable note. Ayrey v. Fearnsides, 4 M. & W. 168. And if the instrument be to pay money, and also to "deliver up horses and a wharf," it is not negotiable. Martin v. Chauntry, 2 Stra. 1271. 5. The payment must be made to a definite person, either to his order or bearer. If made only to a person, without the words "bearer" or "order," it is merely a contract with that person alone, which would then be merely an assignable chose in action. Story on Bills, Secs. 119, 199. If payable "to bearer A," it is the same as if simply payable to A, and is, therefore, not negotiable. Warren v. Scott, 32 Iowa, 22. No precise form of words is necessary to impart negotiability. The words "order" and "bearer" are convenient and expressive, but they are not the only words which will communicate the quality of negotiability; but some equivalent words should be used. Raymond v. Middleton, 29 Penn. St. 530. If the name of the payee be not expressed, yet if there be sufficient to designate him, it will be sufficient on the maxim Certum est quod certum reddi potest. Adams r. King, 16 Ill. 169: Moody v. Threlkeld, 13 Ga. 55; Knight v. Jones, 21 Mich. 161. upon them, though not in all States, to keep a record of their acts in respect to these several duties; but this has already been referred to in a former chapter.1 We shall treat these duties in this chapter, and first of presentment. I. PRESENTMENT FOR ACCEPTANCE. § 77. What should be presented for acceptance.-A bill or order drawn by one person upon another, which is payable at a certain number of days after sight or demand, should be presented for acceptance to the drawee; and this must be done without unreasonable delay, or the drawer and indorsers will be discharged.2 Whether a bill payable at sight should be presented for acceptance is a question upon which there has been a difference of opinion. Because of this difference and uncertainty the matter is now determined by statute in nearly all of our States. Whenever a bill payable at sight is allowed grace, then it is necessary to present it for acceptance in order to fix the time of payment. It has been the opinion in England that days of grace should be allowed. Bills payable on demand, or at a certain number of days after date, or after a certain event, it is agreed are not entitled 1 See Chap. III, Sec. 27. 2 Allen v. Suydam, 20 Wend. 321; Aymar v. Beers, 7 Cow. 705; Robinson v. Ames, 20 Johns. 146; Story on Bills, Sec. 228. * Perhaps nothing can better illustrate the uncertainty of our commercial law in the various States, than our statutory rules regarding bills payable at sight. From a careful examination of our statute law, it appears that in more than one-third of our States sight bills have no grace allowed. These States are: California, where no grace is allowed (Civil Code, Sec. 3181); Colorado (Rev. Stat. p. 88); Connecticut (Rev. Stat. of 1874, p. 344); Delaware (Rev. Code of 1873, p. 355); Georgia (Code of 1873, Sec. 2784); Illinois (Rev. Stat. of 1874, p. 720); Louisiana (Rev. Stat. of 1870, p. 70); Missouri (1 Wagner, 217); New York (2 Rev. Stat. 6th Ed. p. 1163); Ohio (1 Swan. & C. 862); Pennsylvania (Brightley's Purdon's Dig. p. 111); Rhode Island (Rev. Stat. p. 270); Tennessee (2 Taylor, p. 1965); Vermont (Rev. Stat. p. 508). 4 Such is held by Chitty, (13th Am. Ed.) 426; Bayley on Bills, 151; Byles on Bills, (Sharswood's Ed.) 336; Edwards on Bills, 523. In Webb v. Fairmauer, 3 M. & W. Bolland, B., said: "In the case of a bill payable at sight, it has been decided over and over again that the holder cannot sue upon until after the expiration of the third day after sight." The same was the view expressed in Coleman v. Sayer, 1 Barn. 303; Dehers v. Harriott, 1 Show. 163. In Jansen v. Thomas, Lord Mansfield said: "I believe there is great doubt as to the usage about the three days' grace." It was denied that such bills are entitled to grace in Trask v. Martin, 1 E. D. Smith, 505. to grace, and need not therefore be presented for acceptance.1 However, it is the usual and safest way to present a bill payable a certain time after date, in order to obtain the greater security of the drawee's acceptance; and if acceptance be refused, the bill must then be protested in the same manner as if it were payable so many days after sight.2 The necessity of a presentment for acceptance does not exist when the words "acceptance waived" are embodied in a bill.3 § 78. By and of whom presentment should be made. -The holder, or his authorized agent-as a notary may be-has a right to present the bill for acceptance. The party who has possession of a bill is presumed to have the right to demand acceptance or payment. When the bill is drawn upon persons who are not partners, it must be presented to all; for a holder is not bound to receive the acceptance of one or a portion.5 When a bill is drawn on a firm, a presentment to and an acceptance by one partner will be sufficient. The person presenting a bill must be careful to ascertain whether application be made to the right party or his authorized agent for acceptance. Thus, in an action against the drawee on a failure to accept, it appeared that the witness had carried the bill to a place pointed out to him as the drawce's house, and there offered it to a person in a tan-yard, who refused acceptance; the witness did not know the drawee personally, and could not swear that it was he to whom he offered the bill, or that the person represented himself to be the drawee, and it was held that the evidence of presentment to the drawee was insufficient." A clerk found at the counting-room of the drawee is a proper 1 Bank of Washington v. Triplett, 1 Pet. 25; Bachellor v. Priest, 12 Pick. 399; Bank of Bennington v. Raymond, 12 Vt. 401; Smith v. Roach, 7 B. Mon. 17; Walker v. Stetson, 19 Ohio St. 400. 2 Story on Bills, Sec. 228; Glasgow . Copeland, 8 Mo. 268; U. S. v. Barker, 4 Wash. C. C. 464; Allan . Mawson, 4 Camp. 115. 3 Webb v. Mears, 9 Wright, 222; English v. Wall, 12 Rob. La. 132; Liggett v. Weed, 7 Kan. 276. 4 Bank of Utica r. Smith, 18 Johns. 230; Freeman v. Boynton, 7 Mass. 483. 5 Story on Bills, Sec. 229, note 9; Harris v. Clark, 10 Ohio, 5. party to whom to present a bill; and it is not necessary to show that such clerk was the duly authorized agent of the drawee.1 Good authorities hold that, in case of the drawee's death, a presentment should be made to his personal representatives, if they are accessible, and within a reasonable distance.2 But against this view, Edwards on Bills says: "Upon principle, it is not easy to see upon what ground the holder is bound to present a bill drawn upon the deceased to his executor or administrator for acceptance. An acceptance by the representative, binding himself personally, is not according to the tenor of the bill; neither is an acceptance qualified so as to render him responsible to pay out of the assets that may come into his hands." This argument is undoubtedly sound, and it would therefore follow that, in case of the drawee's death, the bill might be protested, and recourse had against the other parties.1 If the drawee have absconded, it should be presented at his last domicile or place of business.5 § 79. The place where the presentment should be made may be general or particular-particular, when a place is specified on the bill. It was a question once much debated whether, when a bill was drawn on a person at a specified place, the holder was bound to present it there only, and if not accepted there, to have it protested. Now, it seems reasonable that the object of indicating a place is to enable the holder more conveniently to find the drawee, and that if he be not there he should be sought for elsewhere. There may be many causes. which would take one away from his place of business or residence, and it would seem a hard rule which would excuse an inquiry for him anywhere else. It was once decided, in the House of Lords, that a demand at the place specified must be made, and nowhere else; but against this was the opinion of 1 Nelson v. Fotterall, 7 Leigh, 180; Stainback v. Bank, 11 Gratt. 260. 2 Chitty, (13th Am. Ed.) 318; Story on Bills, 236. 8 P. 401. 4 Daniel on Neg. Insts. Sec. 458. 5 Groton v. Dalheim, 6 Greenlf. 476; Bayley on Bills, 218. If he only have removed, the holder must endeavor to find out to what place he has removed, and make the presentment there. Collins v. Butler, Stra. 1087. See the second part of the chapter on "Presentment for Payment." 6 Rowe v. Young, 2 Bligh, 391. |