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9. What instruments besides foreign bills of exchange are negotiable in Virginia.
The statute of 3 & 4 Ann, c. 9, not having been adopted in Virginia, many instruments which would be negotiable under that statute, are not negotiable in this state. To shew what are negotiable here, a brief history of the legislation on the subject will be necessary.
Virginia followed, to some extent, the example of Pennsylvania. When the act of Jan. 30, 1804 was passed, for incorporating the Bank of Virginia, there was inserted in it a clause placing on the same footing as foreign bills of exchange, all notes or bills discounted by the said corporation, so that the like remedy may be had for the recovery thereof against the drawers or endorsers, and with the like effect except so far as relates to damages. 2 R. C. 1819, p. 74, c. 193, § 8, cl. 13. The act of Feb. 13, 1812, placed on that footing all notes or bills negotiable at the Farmers Bank of Virginia or any of its offices of discount and deposit. Id. p. 90, 15, cl. 13. The act of Jan. 24, 1814, extending the charter of the Bank of Virginia, placed on the same footing all notes or bills negotiable or negotiated at the said bank or any of its offices, so that the like remedy might be had against the makers, drawers, acceptors or endorsers, except as to damages. Id. p. 78, c. 194, $10. And when the act of Feb. 5, 1817, was passed tc establish two new banks, that also had a provision on the subject. Id., p. 101, c. 201, § 13, cl. 13. The cases of McNeil &c. v. Baird, 6 Munf. 316, and Hays v. North Western Bank, 9 Grat. 127, were decided on some of these provisions.
They were followed by the act of March 22, 1837, (Sess. Acts 1836, 7, p. 66, c. 82, § 6, 9,) establishing general regulations for the incorporation of banks, and the act of 1845, 6, p. 117, c. 156, as to the Portsmouth Saving Fund Society. In place of these, it is now provided, by the Code of 1849, p. 581, c. 144, §7, that every promissory note, or check, for money, payable in this state at a particular bank or at a particular office thereof for discount and deposit, or at the place of business of a savings institution or savings bank, and every inland bill of exchange payable in this state, shall be deemed negotiable.
It follows that an instrument, which would be a good promissory note under the statute of Ann, will, if it be for money. payable in Virginia at such bank, office or place as is men
tioned in the Code, be negotiable though there be not used in it the word "negotiable" or the words "without offset." These words are usually inserted in notes negotiable at our banks. They were taken probably from the forms used in Pennsylvania-forms introduced there for a reason which does not apply in Virginia to notes payable at such bank, office or place as is before mentioned. In this state, a note to this effect: "Sixty days after date I promise to pay at the Bank of Virginia to C D or order $100," is a negotiable instru
WHERE AND WHEN A BILL OR Note must BE PRESENTED FOR PAYMENT; WHEN THERE MUST BE A PROTEST.
1. Demand necessary to charge drawer or endorser of bill or endorser of note.
By the custom of merchants, the holder of a bill of exchange or negotiable note should present the instrument at its maturity and demand payment of the acceptor or maker. Without such demand or due diligence to make a demand on the acceptor, the drawer and endorsers of the bill will not be liable; but no demand on the drawer of the bill is necessary to charge the endorser. Lambert v. Oakes, 1 Ld. Raym. 443; Bromley v. Frazier, Str. 441; Heylin &c. v. Adamson, 2 Burr. 676.
In an action by the endorsee of a negotiable note against the endorser, he must shew a demand, or due diligence to make it, on the maker of the note, just as in an action against the drawer or endorser of a bill of exchange, there must be shewn a demand, or due diligence to make it, on the acceptor. lins v. Butler, 2 Str. 1087; Lambert v. Oakes, 1 Ld. Raym. 443. The mistakes in the report of this case in 1 Salk. 127, pl. 9, and 12 Mod. 244, are remarked on and explained by Lord Mansfield in Heylyn &c. v. Adamson, 2 Burr. 678.
A check, also, should like a bill be presented for payment, Cruger v. Armstrong &c. 3 Johns. Cas. 5. On non-payment of it the holder thereof for value can sue the drawer. Parke, B. in Bellamy v. Marjoribanks, 7 W. H. & G. 404.
2. How and by whom demand is made.
In some cases it may not be necessary, at the time of the demand, to exhibit the bill or note. Whitwell &c. v. Johnson, 17 Metcalf 452; Gilbert v. Dennis, 3 Metcalf 497. But generally the person making the demand should have the instrument with him and deliver it up on receiving payment. Freeman &c. v. Boynton, 7 Mass. 486; Hansard v. Robinson, 7 Barn. & Cress. 90.
The demand may be as well made by an agent as the principal, and there is no need of a power of attorney or any written instrument to constitute an agent for this purpose. v. Butt, 1 Pick. 404. The notary public is usually the agent.
3. At what time demand is made.
The demand must be within a reasonable time after the bill or note is payable. 2 Burr. 674. If it be payable on demand, the demand must be within a reasonable time. Field v. Nickerson, 13 Mass. 131; Martin v. Winslow, 2 Mason 241; Sice v. Cunningham, 1 Cow. 408; McKinney v. Crawford, 8 S. & R. 351; Taylor v. Young, 3 Watts 343.
The allowance of days of grace is understood to enter into every bill or note of a mercantile character, and to form so completely a part of the contract that the bill or note does not become due, in fact or in law, on the day mentioned on its face but on the last day of grace. A demand of payment, previous to that day, will not authorize a protest. Marshall, C. J. in Bank of Washington v. Triplett &c. 1 Peters 31.
By the general law merchant, which is part of the common law prevailing in England and the United States, in the absence of all proof of particular contract or custom, three days of grace are allowed for payment of foreign bills, Tassell &c. v. Lewis, 1 Ld. Raym. 743; and inland bills, 4 T. R. 151, 2.
And in Kentucky it has been decided that a common order, which is substantially an inland bill, must be treated in the same manner. Strader &c. v. Batchelor, 8 B. Monroe 170.
Negotiable notes are on a like footing. Notwithstanding the case of May v. Cooper, Fort. 376, and the opinion of Denison, J. in Dexlaux v. Hood, Bul. N. P. 204, it is settled that three days of grace are allowed on negotiable notes as well as on bills of exchange. Tindal v. Brown, 1 T. R. 167; Brown v. Harraden, 4 Id. 153. They are allowed though the note be payable to the payee, without adding to his order or to bearer. Smith v. Kendall, 6 Id. 123.
The same custom of merchants which, as a general rule, allows three days grace, has limited that indulgence to two days where the third is a Sunday or great holiday. Ante, 1 Rob. Pract. 407, 8.
Where it is relied on that by special custom no grace is allowed, or any other term of grace than three days, it is an exception to the general rule, and the proof lies on the party taking it. Wood &c. v. Corl, 4 Metcalf 205. The usage of the place where payment is to be demanded is to be looked to. Bank of Washington v. Triplett &c. 1 Peters 25; ante, 1 Rob. Pract. 78. Such usage, when shewn to exist, will be respected, whether it be to demand payment on a later day than the third, or to demand it on the second. Jackson v. Richards, 2 Caines's Rep. 343; Lewis v. Burr, Id. 195.
Where a note is held by a bank, whose practice is to allow on the last day of grace the usual banking hours of that day for payment, the demand must not be made before those hours. commence. Boston Bank v. Hodges &c. 9 Pick. 420. A presentment at a banker's must be in the usual hours of business, Parker v. Gordon, 7 East 385; in other cases, the presentment must be at a reasonable hour, Wilkins &c. v. Jadis, 2 Barn. & Adol. 188, 22 Eng. Com. Law Rep. 57; Stivers &c. v. Prentice &c. 3 B. Monroe 463.
4. Where demand must be made of a bill or note not payable at a particular place.
The general rule is, that when a bill of exchange or negotiable note is not made payable at any particular place, in order to charge the drawer or endorser of the bill, or the endorser of the note, payment must be demanded of the acceptor or maker, personally, or at his dwelling house or other place of abode, or at his counting house or place of business. Jewett, C. J., in Spies v. Gilmore, 1 Comstock 326; Woodbridge v. Brigham &c. 13 Mass. 558; Stuckert v. Anderson, 3 Whart. 116; Mason v. Franklin, 3 Johns. 206; Duncan v. McCullough, 4 S. & R. 480; Halls &c. v. Howell, Harper 426; King v. Holmes, 1 Jones 459; Stivers &c. v. Prentice &c. 3 B. Monroe 463; Wheeler &c. v. Field, 6 Metcalf 295. By agreement something else may be equivalent to such demand. State Bank v. Hurd, 12 Mass. 172. But unless it be otherwise agreed, there is to be such demand if it can be made by using due diligence. If the bill or note be dated at a particular place, that may so far raise a presumption as to its being the place of residence of the drawer or maker, as to make it proper to enquire for him unless it be known that his
residence is elsewhere. Without such enquiry there would be a want of due diligence to endeavour to make the demand. Duncan v. McCullough, 4 S. & R. 480. But the mere circumstance of the bill or note being dated at a particular place, does not render it unnecessary to go elsewhere to demand payment, when the residence of the acceptor or maker was elsewhere, both when the instrument was made and when it became payable. Lightner v. Well, 2 W. & S. 140.
If the acceptor or maker abscond before the day of payment, and cannot then be found, the failure to present to him shews no want of diligence. 1 Ld. Raym. 743; Putnam &c. v. Sullivan &c. 4 Mass. 53; Lehman v. Jones, 1 W. & S. 126.
If he has not secretly fled, but merely removed from his residence, there should be enquiry to ascertain where he has gone. Collins v. Butler, 2 Str. 1087; Galpin v. Hord, 3 M'Cord 394.
The fact that the maker of the note had, shortly after making it, and before it became payable, removed from the city in which it was made, and wherein he then resided, is not sufficient to dispense with a demand on him, when it is known that he has a permanent residence within the state: the holder is bound to make a demand at such residence in order to charge the endorser. Anderson v. Drake, 14 Johns. 114; Fisher v. Evans, 5 Binn. 542; 6 Metcalf 295.
It is otherwise where the removal is into a different country or state from that in which the maker resided when the note was made. Such removal excuses the holder from making demand, unless in the note itself a particular place be appointed for the payment thereof. McGruder v. Bank of Washington, 9 Wheat. 598; Gist v. Lybrand, 3 Hammond 320; Widgery v. Munroe, 6 Mass. 451; Gillespie v. Hannakan, 4 McCord 506; Reid v. Morrison &c. 2 W. & S. 401. It may, however, be prudent in such a case to make a demand at the maker's last place of residence. Wheeler &c. v. Field,
6 Metcalf 294.
There is a passage in Judge Story's treatise on promissory notes (§ 236, p. 296) which lays down, but not in a very decided manner, a much broader proposition. He says, "it seems, also, that if the maker of a promissory note resides, and has his domicil, in one state, and actually dates and makes, and delivers a promissory note, in another state, it will be sufficient for the holder to demand payment thereof at the place where it is dated, if the maker cannot personally, upon reasonable enquiries, be found within the state, and has no known place of business there." For this he refers to Hepburn v. Toledano, 10 Miller's Louis. 643. This case admits