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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
in the case, this protest was held sufficient: the general question whether, if the acceptance had been in the usual form, a protest in London would have been sufficient, was left undecided. It appeared from the evidence of several witnesses, some of them notaries and others merchants, that where a foreign bill, drawn upon a merchant residing at Liverpool, payable in London, was refused acceptance by the drawee, the usage was to protest it for non-payment in London. Yet though this was the usage, the doubt arose after the decision in Mitchell &c. v. Baring &c. whether such usage would be sustained by the courts; and the statute of 2 and 3 Will. iv., ch. 98, was passed to remove the doubt. We propose, it will be perceived, to adopt the same statute in Virginia.
The section was adopted as proposed by the revisors, and will be found in the Code of Virginia at page 581. The revisors also proposed, and the legislature adopted, two additional sections, taken from the 6 & 7 Will. IV., p. 402, ch. 58, § 2. They are on the same page (581) of the Code; being § 5 and $6 of chapter 144.
§ 5. When a bill of exchange is accepted supra protest for honour, or has a reference thereon in case of need, it shall not be necessary to present such bill to such acceptor for honour, or to such referee, until the day following that on which such bill shall become due, and if the place of address on such bill of such acceptor for honour, or of such referee, shall be in any town or place other than in the town or place where such bill is therein made payable, then it shall not be necessary to forward such bill for presentment for payment to such acceptor for honour or referee, until the day following that on which such bill shall become due.
§ 6. If the day following that on which such bill shall become due shall happen to be a Sunday or Christmas day, or the first day of January, or fourth day of July, then it shall not be necessary to present it or forward it for presentment for payment to such acceptor for honour or referee until the first day afterwards, which is not Sunday or Christmas day, or the first day of January, or fourth day of July.
7. Of dishonoured instruments; which of them must be protested; as to which of them the protest is evidence of dis
Protest is not made until the close of the last day of grace, or after business hours, which in the United States, in the case of banks, is usually 3 o'clock. King v. Holmes, 1 Jones 459.
A foreign bill of exchange, not paid on the last of those days, ought immediately to be protested. Tassell &c. v. Lewis, 1 Ld. Raym. 743.
The law of England does not require a protest of an inland bill, 15 Wend. 428; or of a promissory note, 5 W. H. & G.
415. Though the holder of an inland bill could, under the custom of merchants, maintain an action on it before the statute of 9 & 10 W. 3, c. 17, yet until this statute there could be no protest of such a bill. The statute was very obscurely and badly penned. See Story on Bills, p. 558, 9, and 560, 468, and notes. It allowed a protest only of bills payable a certain number of days after dute, not of bills payable a certain number of days after sight, Leftley v. Mills, 4 T. R. 173; Tassell &c. v. Lewis, 1 Ld. Raym. 743; and it has been frequently a source of very considerable difficulty. Not being adapted to the usages of the present day, it was rarely observed or followed. Yet of inland bills and promissory notes, it became common to make protests-protests like those made in the case of foreign bills. And the holder was often disappointed at finding such protests decided not to be proof of dishonour of inland, however they might be of foreign bills. In Kentucky they were decided to be no proof of dishonour, either of inland bills or promissory notes. Taylor v. Bank of Illinois, 7 Mon. 577; Whiting v. Walker, 2 B. Monroe 262; Bank of U. S. v. Leathers, 10 Id. 65. And a statute was passed in 1837, making a notarial protest evidence of the fact of presentation and non-payment. 3 B. Monroe 11.
In the Code of Virginia (of 1849) there was intentionally omitted the act in 1 R. C. 1819, p. 483, § 2, taken from the statute of 9 & 10 W. 3, c. 17; and in place thereof a brief provision is made at p. 581, by the 7th section of chapter 144, applicable to all such instruments as this section declares (see ante, p. 172,) shall be deemed negotiable. The provision is that they "may, upon being dishonoured for non-acceptance or non-payment, be protested, and the protest be in such case evidence of dishonour, in like manner as in the case of a foreign bill of exchange."
8. When the formal protest may be drawn up.
Lord Kenyon and Lord Ellenborough concurred in opinion that when a bill had been duly presented and dishonoured, the notary who had noted it at the time, might at a future time draw up the protest in form. Chaters v. Bell &c. 4 Esp. 48. It has since been admitted, that when the fact recorded on a protest has taken place, and been duly entered by a notary in his book at the time of the transaction, it is sufficient if the formal protest be drawn up afterwards, though even after action brought. Bailey v. Dozier, 6 How. 29; 10 Com. Bench (1 J. Scott) 706.
But it has been contended that this rule is liable to an ex