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CHAP. V.

Presentment and Notice.

THE receipt of a bill or note implies an undertaking from the receiver to (1) every party to the bill or note who would be entitled to bring an action on paying it, to (2) present in proper time the one, where necessary, for acceptance, and each for payment, to (3) allow no extra time for payment, and to give (4) notice without delay to such person of a failure in the attempt to procure a proper acceptance or payment; and a (5) default in any of these respects will discharge such person from all responsibility on account of a non-acceptance or non-payment, and unless (6) the bill or note were on an improper stamp, make it (7) operate as a satisfaction of any debt or demand for which it was given.

[Where a bill or note is endorsed after it is due, though the strict rules as to demand and notice do not apply, yet in order to charge the person then endorsing it, a subsequent

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(4) Vide post.

(5) Vide post.

Syderbottom v. Smith, Str. 649. In an action against the endorser of a note, Eyre, C. J. of the Common Pleas, directed the jury to find for the defendant, because the plaintiff had not proved diligence to get the money from the maker; being of the old opinion that the endorser only warrants upon default of the maker.

Gee v. Brown, Str. 792. The holder of an inland bill gave the acceptor time, by intervals, from 14th of May, when the bill became due, to 7th of June, and then sued the drawer; but their being no notice to him, Eyre, C. J. held the loss ought to fall on the plaintiff.

(6) See Wilson v. Vysar, ante, p. 55.

(7) By 3 and 4 Anne, c. 9. § 7. It is enacted, that if any person doth accept any such bill of exchange, for and in satisfaction of any former debt, or sum of money formerly due unto him, the same shall be accounted and esteemed a full and 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 thercof, by endeavoring to get the same accepted and paid, and make his protest as aforesaid, either for nonacceptance or non-payment thereof.

demand must be made on the drawee or maker, within a reasonable time, and notice given to the endorser. (a)

And in such a case the want of a proper presentment and notice, is not excused by the holder of the note's using due diligence to collect it of the maker, even if the endorser knows that the money has not been paid by the maker. (b)

A waiver by an endorser of a bill or note of all right to notice, does not excuse the holder from making a presentment on the drawee or maker. (c) (d)

It has been doubted in New York whether an action could be brought against an incorporated bank on one of its own notes, without making a previous presentment for payment. (e)]

The presentment is to be made where the bill or note is payable.

[(a) Ecfert v. Des Coudres, 1 S. Car. R. 69; Rugely v. Davidson, 2 S. Car. R. 33; Dwight v. Emerson, 2 N. Hamp. R. 159; M'Kinney v. Crawford, 8 Serg. & Raw. 351. Berry v. Robinson, 9 Johns. R. 121. Swift C. J. said, "The endorsement of a bill or note after due is equivalent to drawing a new bill payable at sight; and demand must be made by the endorsee of the drawee of the bill or maker of the note, and notice given to the endorser, as in cases of bills payable at sight." Bishop v. Dexter, 2 Conn. R. 419.]

[(b) M'Kinney v. Crawford, 8 Serg. & Raw. 351.]

[(c) Berkshire Bank v. Jones, 6 Mass. R. 524.]

[(d) Where the selectmen of a town drew an order upon their town treasurer, it was held that no action could be maintained against the town, without proving a presentment for payment to the treasurer. Mellen C. J. delivered the opinion of the court. "The case may be compared to that of a draft by a man on his banker; or a note payable at his banker's, or by his agent, in which cases it seems settled that the draft or note must be presented at the place appointed." Varner v. Nobleborough, 2 Greenleaf, 121.]

[(e) In the case of the Bank of Niagara v. M'Cracken, the defendant, being sued as maker of a note, was allowed to set off notes of the bank which he held, and which he had tendered in payment of his own note, without proving a presentment of them for payment; and Woodworth J., who delivered the opinion of the Court, said, that as the notes were not payable at any particular place, an action might have been sustained on them without a demand at the bank. 18 Johns. R. 493. But in a subsequent case, the court appear to consider the question as to the necessity of a presentment of a bank note, in order to charge the bank, as still open; and they consider that M'Cracken's having tendered the notes of the bank in payment of his own note, was equivalent to a demand of payment. Jefferson County Bank v. Chapman, 19 Johns. R.

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 blll or note is to be considered as dishonored, especially if he cannot be heard of at any of the banking-houses there; (9) if he has only removed, the holder (10) must endeavor to find out to what place he has removed, and make the presentment there.

[Where no place of payment is specified, in a bill or note, a presentment at the residence of the drawee or maker, is sufficient, even if he be out of town at the time. (a)

(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.

[In a case in Massachusetts, the court held that where the maker of a note, having become insolvent, left the country before it became due, the plaintiff was excused from demanding payment of him, in order to charge the endorsers. Widgery v. Munroe, 6 Mass. R. 449.

And in another case, the same court held that where the maker of a note absconded before it became due, the holder was discharged from his obligation to make a presentment, in order to charge the endorser. Putnam v. Sullivan, 4 Mass. R. 46.

Van Ness, J. in a case in New York decided that where the maker of a note was notoriously absent in a foreign country, there was no need of showing diligent inquiry for him, or of making a demand at his last place of residence or business. But in this case it appeared that the maker of the note at the time it fell due was actually resident in a foreign country, having no domicil or place of business in New York. Cummings v. Fisher, Anth. N. P. 1.]

(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 endorser, 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 inquired after the maker, or attempted to find him out. Vide Bateman v. Joseph, p. 228. n. (105).

[Where the residence of the maker of a note is not known to the holder, the presumption is, that he resides at the place where the note is dated, and that is the proper place to make inquiry for him. Duncan v. M'Cullough, 4 Serg. & Raw. 480.

See also Rugely v. Davidson, 2 S., Car. R. 33. as to the diligence to be used to make a demand upon the maker of a note, and to ascertain the place to which he has removed.]

[(a) Moodie v. Morrall, 1 S. Car. R. 367.

But a demand of payment at a place where the maker of a note once

So a presentment at his place of business is sufficient, if made in business hours, even if it be shut, and no person left there to answer inquiries. (a)

If the maker of a note where no place of payment is specified, remove from his place of residence, after the making of the note, and before it becomes due, to another place within the same State or government, a demand must still be made upon him, in order to charge an endorser, (b) but if he removes to a place out of the State or government, no presentment is necessary. (c)]

boarded, he residing at another place at the time of the demand, is altogether nugatory. Freeman v. Boynton, 7 Mass. R. 483.

So a demand at a store formerly occupied by the maker of a note, but not occupied by him at the time of the demand, is not sufficient to charge an endorser. Bond v. Farnham, 5 Mass. R. 170.]

[(a) Shed v. Brett, 1 Pick. 413.]

[(b) In an action against the endorser of a note, he pleaded specially, that the maker of the note had, shortly after the making thereof, and before it became payable, removed from the city of New York to Kingston in Ulster county, in the same State, there permanently to reside, which was well known to the plaintiff, and that no demand had been made upon the maker. Demurrer. Thompson C. J. delivered the opinion of the court. "In a case decided in this court, the drawer of the note had removed to Canada; the note was drawn and dated at Albany, though not made payable at any particular place, it was held that a demand at Albany was sufficient to charge the endorser.” “I am inclined to think where a note is not made payable at any particular place, and the maker has a known and permanent residence within the State, the holder is bound to make a demand at such residence. As the demurrer, therefore, in this case admits the permanent residence of the maker to have been at Kingston, when the note fell due, and that known to the plaintiff, he was bound to demand payment of the note at that place; and not having done so the endorser is discharged.” Judgment for defendant. Anderson v. Drake, 14 Johns. R. 114.]

[(c) In an action against the endorser of a note, it appeared, that when the note was made, and until within ten days of its falling due, the maker was a housekeeper in the District of Columbia, but that he then removed into the State of Maryland, to a place about nine miles out of the district. The holder of the note did not know the place to which the maker had removed. A notary called to present the note at the former place of residence of the maker, and protested it for non-payment; but it did not appear that any inquiries were made to ascertain where he then resided. Johnson J. delivered the opinion of the court. "The party must be considered as lying under the same obligations, as if, having made inquiry, he had ascertained that the maker had removed to a distance of nine miles, and into another jurisdiction. We think that reason and convenience are in favor of sustaining the doctrine that such a removal is an excuse from actual demand, No other rule can be laid down

If on a presentment, it appears that the drawee or maker is dead, the holder (11) should inquire 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.

[So if a bill or note be payable at a particular place, if the bill or note is at that place on the day of payment, and any person there authorized to receive payment and give up the note, it is sufficient to charge the endorser. (a)

which will not leave too much latitude as to place and distance." M'Gruder v. Bank of Washington, 9 Wheat. R. 598.

See also Anderson v. Drake, supra.]

(11) Molloy, B. 2. c. 10. § 34. "If a bill be accepted, and 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. Judge, 2 H. Bl. 509. A note made

payable at the plaintiffs' was endorsed to them; when it became due, the maker having no effects in their hands, they wrote to one of the endorsers to say it was not honored, and afterwards brought an action against him; but it appearing that they had made no demand on the maker, they were nonsuited; 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.

[(a) In a suit by the Berkshire Bank against the endorser of a note payable at the Berkshire Bank, Sedgwick J, at the trial nonsuited the plaintiffs because there was no proof of a demand on the promiser. Parsons C. J. delivered the opinion of the court. "As the plaintiffs held this note, we must presume it was in their bank; and there it was made payable. The nonsuit ought to be set aside; and if on the trial the plaintiffs can show that on the day of payment the note was at the bank, and that the servants or officers of the plaintiffs were there during the usual bank hours, to receive payment and give up the note, they will be entitled to recover, as by the terms of the note, they were not holden to demand

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