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The presentment is to be made where the bill or note is payable.
If the drawee or maker cannot be found at the place where the bill or note is payable, and it appears that he never lived there, or has (8) absconded, the bill or note is to be considered as dishonoured, especially if he cannot be heard of at any of the banking-houses there; (9) if he has only removed, the holder (10) must endeavour to find out to what place he has removed, and make the presentment there.
If on a presentment it appears that the drawee or maker is dead, the holder (11) should enquire
complete payment of such debt, if such person accepting of any such bill for his debt, doth not take his due course to obtain payment thereof, by endeavouring to get the same accepted and paid, and make his protest as aforesaid, either for non-acceptance or non-payment thereof.
(8) Anon. Lord Raym. 743. "The custom of merchants is, that if B., upon whom a bill of exchange is drawn, absconds before the day of payment, the man to whom it is payable may protest it, to have better security for the payment, and to give notice to the drawer of the absconding of B." Proved by merchants at Guildhall, Tr. 6 W. and M., before Treby C. J. (9) See Hardy v. Woodroffe, post.
(10) Collins v. Butler, Str. 1087. The maker of a note shut up his house before the note became due, and in an action against an indorser, the question was, whether the plaintiff had shewn sufficient in proving that the house was shut up? and Lee C. J. thought not, but that he should have given in evidence that he enquired after the maker, or attempted to find Vide Bateman v. Joseph, p. 228. n. (105).
(11) Molloy, B. 2. c. 10. § 34. "If a bill be accepted, and
after his personal representative, and if he lives within a reasonable distance, present the bill or note to him.
If, in the absence of a drawee, a bill has been accepted by his agent, and at the time when the bill becomes due, the drawee be still absent, presentment for payment (12) should be made to such agent.
If a bill or note is made payable at a banker's, it is (13) sufficient to present it for payment at the banker's, and if the banker is himself the holder, it is (13) sufficient for him to see whether he has effects in hand.
If a bill or note is made payable at a particular house, that house is the proper place at which to make the presentment, whether such house be mentioned in the body of the bill or note, or
the party dies, yet there must be a demand made of his executors or administrators; and in default of payment, a protest must be made."
(12) See Philips v. Astling, post, p. 232.
(13) Saunderson and others v. Judge, 2 H. Bl. 509. made payable at the plaintiffs' was indorsed to them; when it became due, the maker having no effects in their hands, they wrote to one of the indorsers to say it was not honoured, and afterwards brought an action against him; but it appearing that they had made no demand on the maker, they were non-suited; on shewing cause however against a rule for a new trial, the court held, that it was sufficient to present the note where the maker made it payable, and as the persons at whose house it was made payable were themselves the holders, it was sufficient for them to refer to their books, and see whether they had effects in hand; and a new trial was granted.
in a marginal note only, or in the acceptance only. (14)
And if such house be mentioned in the body of a note, a presentment there is necessary even to charge the maker. (15)
(14) Ambrose v. Hopwood, 2 Taunt. 61. In an action against the drawer of a bill, the declaration stated the bill to have been accepted by the drawee, payable at Messrs. Freeman's and Co., No. 6. Church-street, Bermondsey, Southwark, and averred that the bill was in due manner presented to them for payment, not saying in Church-Street, &c. and dishonoured. On special demurrer for other causes (which were abandoned) it was contended that there was no due averment of a presentment for payment, and that this objection, which was not one of the causes assigned, went to the substance of the case. The court held the objection fatal, but permitted the plaintiff to amend on payment of costs.
See Garnett v. Woodcock, 1 Stark. 475.
(15) Sanderson v. Bowes and others, B. R. M. 52 Geo. III. In an action on twelve country bank notes, for 17. 1s. each, issued by the defendants from their banking-house at Workington, the declaration contained a count upon each note, stating that the defendants made a certain promissory note, " and thereby, on demand, promised to pay at the banking-house at Workington, to one R. N. or bearer," the sum of 17. 1s.; and that thereby the defendants became liable, and promised to pay, according to the tenor and effect of the note. There was, however, no averment of a presentment for, or demand of, payment at the banking house; but only the usual allegation, that the defendants, 'although often requested," (without saying where) had refused to pay. To these counts there was a general demurrer and joinder; and after argument, the court held, that there being no privity between these parties but in respect of the note, and that being a contract to pay at a particular place, a demand of payment at that place was in the nature of a condition precedent to the plaintiff's right to recover; and there
And so it is if it be printed on the note, though by way of memorandum only. (16)
being no averment of such demand, the defendants were entitled to judgment; and they gave judgment accordingly.
Dickinson v. Bowes, 16 East. 110. Action against the makers on fifty-six guinea notes; they were dated Workington Bank, and ran thus: "On demand I promise to pay at the banking-house here to R. W. or bearer, the sum of one guinea, value received." Proof was given that thirty-two were presented
payment at the banking-house at Workington, and payment refused; but there was no such proof as to the other twentyfour, and on point saved, the court held that plaintiff could only recover in respect of the thirty-two, and judgment accordingly.
Howe v. Bowes, 16 East. 112. Action on a similar note for five guineas against the makers, instead of averring presentment plaintiff alleged that defendants became insolvent, and ceased and wholly declined and refused to pay at the banking-house aforesaid, the sum specified in any note issued by them, and he proved that the shop was shut up and no notes paid there for some time before the action; the jury considered this proof as making out the averment, and verdict for plaintiff: and on rule nisi to set aside the verdict, and cause shewn, the court thought the verdict right; the shutting up the shop was in substance a refusal to make any payments there, and rule discharged. But on error, the Exchequer chamber thought the allegations in the declaration not sufficient to excuse a presentment, and reversed the judgment, 5 Taunt. 30.
(16) Trecothick v. Edwin, 1 Stark. 468. The whole of a note, except the names of parties, sum, and date, was printed; and at the bottom was printed, "at Barclay, Tritton, and Co.'s." In an action against the maker, a question was made whether it was necessary to prove a presentment at Barclay and Co.'s; and Lord Ellenborough held it was, because the stipulation being printed, must have been on the note at the time the note was made, and was to be considered part of the note. The proof was then given, and the plaintiff had a verdict.
And if such house be mentioned in an acceptance, and the acceptance makes the bill payable there and not otherwise or elsewhere, a presentment there will be necessary to charge the acceptor. (17)
(17) See 1 and 2 Geo. 4. ante, p. 157.
Callaghan v. Aylett, 3 Taunt. 397., 2 Campb. 549. In an action against the acceptor of a bill, it appeared that the bill was accepted, payable at Messrs. Ramsbottoms', bankers, London; and two objections were taken to the plaintiff's right to recover; first, that there was a variance between the acceptance proved, which was a special one, and that averred in the declaration, which was general; and secondly, that there was no proof of a presentment for payment at the place where the bill, by the acceptance, had been made payable. A verdict was found for the plaintiff, subject to the opinion of the court upon these points, which were reserved. A rule nisi to set aside this verdict and enter a nonsuit, was obtained; and after cause shewn, the court (Mansfield C. J. absente) held, that the place where a bill is made payable must be considered as part of the contract between the acceptor and the holder; that this was a special and qualified acceptance, binding the acceptor to pay at Ramsbottom's, and not universally. They said, it seemed fair that when a party had provided funds at his banker's for the due satisfaction of a bill, he should be allowed to protect himself from the risk of being arrested upon it by a malicious creditor. They referred to Parker v. Gordon, 7 East, 385., and said it could make no difference (for this purpose) whether the action were against the drawer or acceptor. Rule absolute.
Gammon v. Schmoll, 5 Taunt. 344. Bill directed to defendant, Bath: the declaration alleged that he accepted it, "payable at Batson's, London ;" there was no averment of a presentment at Batson's. Demurrer on that ground; and after argument, the court held the averment essential, and the declaration, for want of it, bad.