Page images

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

of the inference that the maker of the note had removed from Louisiana after giving the note. But, if the fact were otherwise, the decision has not been followed.

Where no change has taken place in the residence of the maker, between the making of the note and the time of its payment, the intervention of a state line does not dispense with the necessity of making due demand of payment, or at all affect the question. A debtor, whose residence is in Florida, being at Troy, N. Y., makes a note, which is dated there and endorsed by a friend residing there, and delivered to a creditor a resident of New York. Though the holder knew the maker's residence to be in Florida, the demand instead of being made there was made at Troy. This demand was held insufficient to charge the endorser; the note not being made payable at Troy. Taylor v. Snyder, 3 Denio 148.

And, indeed, the principle is the same where the residence of the endorser is in a foreign country. That it would be inconvenient to go or send there is no excuse. It was so held where both the maker and endorser, at the time of making and endorsing the note, as well as at the time of its maturity, were residents of, and doing business at Metamoras in Mexico, and these facts were known to the holder, who at the same time resided in New York where the note was drawn, dated and endorsed. Spies v. Gilmore, 1 Comstock 326.

5. Of demand at the particular place where bill or note is payable.

To charge the endorser of a bill or note made payable at a particular place, there may, and should be, presentment at that place and demand there of payment. Saunderson v. Judge, 2 H. Bl. 509; Stewart v. Eden, 2 Caines' Rep. 127; Watkins v. Crouch &c. 5 Leigh 522. But there need be no formality in the demand when the bank at which the bill or note is payable is itself the holder of it, and the instrument is in the bank when it becomes due. Bank of U. S. v. Carneal, 2 Peters 542; Rahm v. Phila. Bank, 1 Rawle 335; Jenks v. Doylstown Bank, 4 W. & S. 511. When a note is payable at a particular bank, with authority to the cashier to receive payment and give up the note, the non-payment of the note during bank hours on the last day of grace is a dishonour. Phipps &c. v. Chase, 6 Metcalf 492; Clarke v. Eldridge, 9 Id. 96.

With respect to the necessity for presentment at a particular place, as it regards the liability of the acceptor of a bill or maker of a note, there was formerly maintained in England VOL. II.-12

a doctrine which was disapproved in Virginia, Armistead v. Armisteads, 10 Leigh 512, Hays v. North Western Bank, 9 Grat. 130; and generally in the United States. That doctrine led to the statute of 1 & 2 Geo. IV., c. 78.

The revisors of the Code of Virginia proposed the following as the first section of chapter 144.

If a person accept a bill of exchange, payable at the house of a banker or other place, without further expression in his acceptance, such acceptance shall be deemed a general acceptance, and the presentment of the bill for payment may be either at such place, or as it might have been if no such place had been specified in the acceptance. If an acceptor shall, in his acceptance, express that he accepts the bill, payable at a banker's house or other place only, and not otherwise or elsewhere, such acceptance shall be deemed a qualified acceptance, and in such case the presentment of the bill for payment shall be at the place specified in such qualified acceptance. But as against the maker of a note or the acceptor of a bill, whether the acceptance be general or qualified, it shall not be necessary to aver or prove presentment for payment at the time or place specified in the note, bill or acceptance. Such maker or acceptor may, however, set up, as a matter of defence, any loss sustained by him, by reason of the failure to make such pre


To this section the revisors subjoined the following note.

For a history of the decisions in England, which gave rise to the statute of 1 and 2 Geo. iv., ch. 78, see Chitty on Bills, ch. 7, p. 321, 2, of eighth edition. The decision of the house of lords in the leading case of Rowe v. Young, 2 Bligh's Par. Cas. 391; 2 Brod. & Bingh. 165; 6 Eng. Com. Law Rep. 53, has been disapproved in this country. Story on Bills, p. 263, § 239, and note, p. 416, § 356, and note. And the obligation of the maker of a note, or of the acceptor of a bill, has been enforced here more justly than was done in Rowe v. Young. See Wallace v. M'Connell, 13 Peters 136, and Armistead v. Armisteads, 10 Leigh 512. Notwithstanding these American decisions, it seems best, so far as it can be done consistently with them, to incorporate into our Code the statute of 1 and 2 Geo. iv., c. 78. The importance of this must be admitted, when it is remembered how many bills are drawn and endorsed in Virginia upon persons in England. When any such bill is accepted there, proceedings may be expected to be had according to the statute of 1 and 2 Geo. iv., ch. 78. After which, if an action be brought here against the drawer or endorser, the question whether those proceedings would sustain such action would be much more difficult, if we are without the statute of 1 and 2 Geo. iv., ch. 78, than if this statute had been incorporated into the Code of Virginia. We therefore propose to adopt it, so far as it has any bearing upon the liability of others than the maker of a note or the acceptor of a bill; as to such maker or acceptor, preserving unimpaired the principle of the American decisions-a principle which, even in England, the case of Rhodes v. Gent, 5 Barn. & Ald. 244; 7 Eng. Com. Law Rep. 84, has gone very far to sustain.

The section was adopted as proposed, and will be found in the Code of Virginia, at page 581. The words in italics are in accordance with the decisions in De Bergareche v. Pillin, 3 Bingh. 476, Hankey v. Borwick, 4 Id. 135, 13 Eng. Com. Law Rep. 60, 376.

6. When bill refused by drawee, is accepted for honour, what presentment for payment is sufficient.

There is a case in New York of a bill drawn on a firm of Liverpool, requiring them to pay 60 days after sight to a firm in London; a case wherein a right of action having arisen upon the protest for non-acceptance, it was considered that right could not be destroyed by the subsequent demand of payment being made at an improper place. Mason &c. v. Franklin &c. 3 Johns. 206.

But a bill, protested for non-acceptance, may be accepted under protest for honour, with the intention that it shall be presented when due. 10 Barn. & Cress. 4. An acceptance, for the honour of the drawer or endorser, is in its nature qualified, and amounts to a collateral engagement only, that is an undertaking to pay if the original drawee, upon a presentment to him for payment, should persist in dishonouring the bill, and such dishonour by him should be notified to the person. who has accepted for the honour of the drawer. Hoare &c. v. Cazenove &c. 16 East 394; Lenox v. Everitt, 10 Mass. 1. The revisors of the Code of Virginia proposed the following as the second section of chapter 144.

If a bill of exchange, wherein the drawer shall have expressed that it is to be payable in any place other than that by him mentioned therein to be the residence of the drawee, shall not, on the presentment thereof for acceptance, be accepted, such bill may, without further presentment to the drawee, be protested for non-payment in the place in which it shall have been, by the drawer, expressed to be payable, unless the amount thereof be paid to the holder on the day on which the bill would have become payable, had it been duly accepted.

To this section the revisors subjoined the following note.

It is a general rule of law that the protest for non-payment is to be at the place where the drawee resides. In Mitchell &c. v. Baring &c. 4 Car. & Payne 35; 19 Eng. Com. Law Rep. 261; 10 Barn. & Cress. 4; 21 Eng. Com. Law Rep. 12, the drawer of a bill made in America, had expressed that it was to be payable in London, yet Liverpool was mentioned therein as the residence of the drawee; on the presentment thereof for acceptance, it was not accepted; and the protest for nonpayment was at Liverpool. Under particular circumstances appearing

« PreviousContinue »