« AnteriorContinuar »
within a limited time after a certain event, or (52) at sight, is not in fact payable until (53) two days after the expiration of that time, nor unless the third be a day of public rest, until (58) three.
These extra days are called days of grace. Different (54) countries vary in the number of days allowed by way of grace; and in two cases
a note dated the 13th of September 1789, and payable the 2d of November, the declaration stated a presentment and refusal on the 2d of November. The Defendant pleaded a tender on the 5th, and the plaintiff replied a bill of Middlesex sued out the 4th rejoinder, that defendant was not liable to pay the note at the time the bill of Middlesex was sued out, and surrejoinder that he was. Demurrer and joinder. The question therefore was, whether three days' grace were to be allowed on promissory notes? and after argument the court was unanimous that they were. The same point was taken for granted in Smith v. Kendall, ante, p. 29, note (62). See Dexlaux v. Hood, Bull. Ni. Pr. 274. Ward v. Honeywood, Dougl. 62. May v. Cooper, Fort. 376.
(52) See Coleman v. Sayer, ante, note (50), and in Janson v. Thomas, ante, p. 79, note (20), Buller J. mentioned a case before Willes C. J. in London, in which a jury of merchants was of opinion that the usual days of grace were to be allowed on bills payable at sight. But see Poth. pl. 12. 172. 198.
(53) Tassell v. Lewis, Lord Raym. 743. "In case of foreign bills of exchange, the custom is, that three days are allowed for the payment of them; but if it happens that the last of the three days is a Sunday, or great holiday, as Christmas day, &c. upon which no money used to be paid; there the party ought to demand the money upon the second day, otherwise it will be at his own peril. Merchants in evidence swore this to be the custom of merchants, and it was approved by Holt C. J. See also 2 Bl. Com. 469. Mar. 2d ed. 25.
(54) Beawes, § 260. 1st ed. p. 449. The number allowed by the Hamburgh ordinance, art. 16., is twelve.
some years ago it was proved (55), that at Hamburgh the holder of a bill is not bound to present it until the eleventh day after the time limited for its payment, where the eleventh is a post day; that if the eleventh be not a post day, he must present it the next preceding post day; but that (56) if
(55) Goldsmith and another v. Shee, C. P. cor. Lord Eldon, 20th of December, 1799. A bill for 500l. drawn on Katter at Hamburgh, at three usances, was dated the 25th of June, 1799; it was presented for payment on the 4th of October, which was a post day. In an action by the indorsees against the payee, the defence was, that the presentment was improper; but it was proved in evidence as the settled usage at Hamburgh, that although it is usual to pay bills on the day they become due, the holder may, if he pleases, keep them a certain number of days, called respite days; and that the number of respite days is eleven where the eleventh is a post day; but where the eleventh is not a post day, the respite days extend to the preceding post day only, the holder being obliged at his peril to protest, and send off the protest by the eleventh day. Verdict for the plaintiffs.
But this is not consistent with the Hamburgh ordinance, art. 17; in which it is stated that the holders may postpone the protest until the twelfth day, if it be not a Sunday or holiday.
(56) Goldsmith and another v. Bland and another, C. P. cor. Lord Eldon, 1st of March, 1800. A bill for 9981. 9s. 9d. drawn on Treviramus of Bremen, but payable in Hamburgh at three months, was dated the 15th of June, 1799; it was not presented or protested until the 26th of September, which was not a post day: another bill for 2617. 7s. 2d. addressed to Voeg, in Lubeck, payable in Hamburgh, at three months, was dated the 26th of June, 1799; it was not presented or protested until 7th of October, which was not a post day. In an action on these bills against the defendants as indorsers, it was proved that it was optional in the holder of a bill at Hamburgh, whether he would present and protest it on the post day before the eleventh day after the day limited for its payment, the eleventh
the drawee reside not at Hamburgh, but at Lubeck or Bremen, or other places near Hamburgh, and in daily intercourse with it, the holder need not present it until the eleventh day, although the eleventh be not a post day.
In this country, upon the last day of grace, and within a reasonable time before the expiration of that day, a bill or note must be presented for payment.
But if the holder makes a second presentment on that day, the drawer or maker is (57) entitled to insist on paying it when such presentment is made, without paying the fees of noting or protesting, notwithstanding such presentment is made after the banking hours, and for the purpose of noting and protesting.
A presentment on the second day of grace, where the third is not a day of public rest, is a (58) nullity.
not being a post day, or whether he would keep it until the eleventh and one witness proved, that where the drawee lived at Lubeck or Bremen, it was the constant usage to keep the bill until the eleventh, whether it was a post day or not, there being posts from Lubeck and Bremen to Hamburgh every day. Verdict for the plaintiffs for 16337. See the preceding note. (57) Leftley v. Mills, post. p. 213. note (83).
(58) Wiffen v. Roberts, Espinasse, 261. A bill was dated 1st November, 1798, and payable three months after date: in an action against the drawer, it appeared that the only presentment for payment was on the 3d of February, which was only the second day of grace, and the day following was not a day of public rest; and Lord Kenyon held, that the non-payment by the acceptor the day before the bill became regularly due, was not such a default in him as could authorise the holder to have recourse to the drawer, and the plaintiff was nonsuited.
Upon a bill or note payable within a limited time after sight, the time must be computed from its (59) presentment for acceptance; and upon a bill or note payable within a limited time after the date, where it has no date, from (60) the day it issued.
The calculation of the time depends upon the different modes of computing time.
All places with which we are in the habit of negotiating bills compute their time, as we do, (except that Russia adheres to the old style) by years reckoned in a series from the birth of our Saviour, and divided each into twelve months, and 365 (or in every fourth year 366) days.
Upon a bill drawn at a place using one style, and payable at a place using the other, if the time is to be reckoned from the date, it shall be computed according to the style of the place at which it was drawn; otherwise according to (61) the style
(59) Beawes, § 252. 1st ed. p. 447.; but Mar. 2d ed. p. 19. says from the day of acceptance, or protest for non-acceptance. By the Hamburgh ordinance, art. 26. "If a bill of exchange, at or after sight, should not be accepted immediately on its being presented, but it should be done afterwards, such acceptance is to be considered as made on the first day of presentment." Pothier, pl. 13. says, from the day of presentment and acceptSee Campbell v. French, 6 Term Rep. 200.
(60) Armitt v. Breame, Lord Raym. 1076. An award which directed the removal of some scaffolds within fifty-eight days from the date of the award, had no date; and an objection being taken upon this ground, the court said that the time was to be computed from the delivery.
(61) Vide Mar. 2d ed. p. 25. Beawes, § 251. 1st ed. p. 447.
of the place where it is payable; and in the former case the date (62) must be reduced or carried forward to the style of the place where the bill is payable, and the time reckoned from thence.
Thus on a bill dated the 1st of March, old style, and payable here one month after date, the time must be computed from the corresponding day of February, new style; and on a bill dated the 19th of February, new style, and payable at Petersburgh one month after date, from the corresponding day of March, old style.
Where the time after the expiration of which a bill or note imports to be payable is limited by months, it is to be computed by (63) calendar, not lunar months.
Thus on a bill or note payable one month after date, and dated the 1st of January, the (64) month will not expire till the 1st of February.
Where the time is computed by days, the day on which the event happens is to be (65) excluded.
(64) Vide Mar. 2d ed. p. 24. Beawes, § 253. 1st ed. p. 447. (65) Bellasis v. Hester, Lord Raym. 280. Lutw. 1591. Upon a bill payable ten days after sight, Treby C.J. was of opinion, that the day on which the bill was seen by the drawee was not to be reckoned one of the ten, because then a bill payable one day after sight would be payable the day it was seen; but Powell and Neville Js. held the contrary, and judgment was given according to their opinion. However, in May v. Cooper, Fort. 376., the court seemed to consider a note payable ten days