maker by a memorandum on the note made subsequently to the endorsement, and without the knowledge or consent of the endorser. (a)]

If a check upon a banker be lodged with another banker, a presentment by the latter at the clearing house is (21) sufficient.

and endorser, at one Metcalf's shop in Cornhill, Boston, by direction of the maker and endorser respectively. The court held the demand and notice sufficient. Curia. "The agreement of the promiser that notice left for him at a certain shop in Boston should be equivalent to a more formal demand upon him, removed the necessity of resorting to his house or place of business, to make such demand; and his failure to pay on such notice rendered the endorser, who had seasonable information, absolutely liable." State Bank v. Hurd, 12 Mass. R. 172. See also Whitwell v. Johnson, post.]

[(a) Woodworth endorsed a note made by Kane, payable in sixty days, for Kane's accommodation. After the note was made and'endorsed, Kane, without the consent or knowledge of Woodworth, wrote in the margin, "Payable at the Bank of America, James Kane." In a suit against Woodworth as endorser, a presentment at the Bank of America and notice to him were proved; and the Supreme Court of New York held that he was liable. Spencer C. J. delivered the opinion of the Court. "On the ground that the memorandum in the margin of the note in this case, did not alter the contract, as between the immediate parties to the note; as it was an appointment of the place where the maker would pay the note; and as I think, upon authority that has not and cannot be shaken, the maker had a right to make such appointment, a demand of payment at the Bank of America was sufficient." But he questioned whether appointing a very distant place of payment without the knowledge of the endorser, might not be a fraud upon him, so as to discharge him from his liability. Bank of America v. Woodworth, 18

Johns. R. 315.

This case was afterwards reversed by the Court of Errors, on the ground, as it seems, that the memorandum made by Kane was a material alteration of the contract, and so discharged the endorser; or that if the alteration was not material, and the original contract remained untouched, then there was no sufficient demand on the maker. The Chancellor, Kent, was in favor of affirming the opinion of the Supreme Court. His opinion contains a very elaborate examination of the cases. He took the following positions. 1. That the plaintiffs being bona fide endorsees, who received the note without knowing of any dissent to the memorandum on the part of the endorser, were only required to make a demand at the place named in the memorandum. 2. That the note endorsed was like an inland bill, and therefore that the maker of the note after the bill was returned to him, had a right to appoint a place for payment, as none was mentioned in the note, in the same manner as the acceptor of a bill might designate a place for payment. 3. That the memorandum was no part of the contract, but was sufficient to justify the holder in calling at such a place for payment, and being refused he had a right to look to the endorser. Eighteen senators were for reversing; nine concurred with the chancellor. Woodworth v. Bank of America, 19 Johns. R. 391.] (21) See Robson v. Bennett, post. p. 195, n. (47)

[Where a bill is drawn upon a person resident in A, but is made payable in B, a large city, without specifying any particular place in B, it is sufficient for the holder in order to charge the prior parties, either to present the bill to the drawee for payment at his place of residence, or to have the bill at the place where it is payable on the day of payment, and there have it protested without making any inquiry for the drawee. (a)]

A presentment should be made at a seasonable time.

If by the known custom of any place, bills and notes are only payable within limited hours, a presentment there out of those hours is unreasonable.

And so is a presentment out of the hours of business to a

[(a) An action was brought against the endorsers of a foreign bill drawn upon Rathbone, Hughes, and Duncan, merchants at Liverpool, payable sixty days after sight in London. Acceptance had been refused, and the declaration averred that when the bill was due, it was presented to the drawees at Liverpool, who refused to pay the same, and that it was then protested at Liverpool for non-payment. Demurrer, because the declaration did not allege a presentment for payment in London, or diligence to find any person to whom to present the bill for payment, or a protest in London. Kent C. J. delivered the opinion of the Court. “A good cause of action arose upon the protest for non-acceptance; and were we to admit that the subsequent demand of payment and protest for non-payment were void acts, by being made at Liverpool, that part of the declaration alleging the subsequent demand and protest might. be rejected upon demurrer as surplusage. But we are of opinion that as no place of payment in London was designated, the demand of payment and protest for non-payment, were well made upon the drawees personally, at Liverpool. A general refusal to pay was a refusal to pay according to the face of the bill. It was equivalent to a refusal to pay in London." Mason v. Franklin, 3 Johns. R. 202.

In another action against the drawer of a bill drawn upon Rathbone, Hughes, and Duncan of Liverpool, payable in London, in which case also the bill was not accepted, the declaration did not state a presentment for payment to the drawees in Liverpool, but averred that the bill when payable was protested at London for non-payment, and that the holders did not know where to present the same for payment in London. Demurrer, because the plaintiffs did not allege a presentment of the bill to the drawees for payment, or any endeavors to find the drawees or inquiries made for them. Kent C. J. delivered the opinion of the Court. "It was not incumbent upon the plaintiffs to state that inquiry was made in London for the drawees. Lex neminem cogit ad vana seu inutilia. An attempt to search for them in such a city as London would have been without any object or effect. Nor were the holders bound to go elsewhere to seek the drawees, as the bill had directed the payment to be in London. They were in London on the day of payment ready to

person of a particular description, as a (22) banker in a place where, by the known custom of that place, all persons of his description begin and leave off business at stated hours. (a) But to an acceptor not so circumstanced (23), eight

receive payment; and they did all that they were enabled to do, they caused the bill to be there protested." Boot v. Franklin, 3 Johns. R. 208.]

(22) Parker v. Gordon, 7 East's Rep. 385. The drawee accepted the bill, payable at Davison and Co.'s, his bankers; at the part of the town where Davison and Co. lived, bankers shut up at six o'clock. The bill was not presented for payment until after six, when the shop was shut up, and the clerks gone. In an action against the drawer, Lord Ellenborough held that this was not a good presentment, and nonsuited the plaintiff and on motion for a new trial, the court held, that if a party took an acceptance payable at a banker's, he bound himself to present the bill during the banking hours; and therefore rule refused.

N. Lawrence and Le Blanc Js. said, the holder was not bound to take such an acceptance.

Elford v. Tred, 1 Maule and Selw. 28. The drawee accepted a bill, payable at his bankers', Hodsoll and Co.; the only evidence of a presentment was by a notary's clerk, between half after six and seven in the evening the banking-house was then shut, and the answer at the private door was "no orders." Lord Ellenborough allowed plaintiff to take a verdict, with liberty to defendant to move to enter a nonsuit; rule nisi: and on cause shewn, the court thought this presentment too late; that it furnished no ground for presuming that there had been a prior presentment by the holder within the banking hours; but that plaintiff might have an opportunity of proving such a presentment, they allowed him to have a new trial on his paying the costs.

[(a) But where a bill or note is payable at a bank, a presentment for payment at the bank after it is closed as to other business, is sufficient, if it be made within the usual time for making such presentments.

Action against an endorser of a note payable at the Mechanics Bank in the city of New York. The note was presented for payment at the bank on the day it became due at about fifteen minutes after three o'clock P. M. It was proved that this was the usual hour to call for notes, though the bank closes at three o'clock P. M.; that the officers of the bank were all present, and they never deliver notes for protest, until after the banking hours; and that payment will be received even after banking hours, if the officers are present. Spencer C. J. delivered the opinion of the court. "The bill was properly presented at the bank for payment; and although it was a quarter of an hour after the usual time for closing the bank as to other business, it was yet within bank hours; for it appears that these fifteen minutes, according to the general course of doing business at this bank, was the usual and accustomed time for such presentment; and of the course of doing business there the defendant ought to have informed himself." Bank of Utica v. Smith, 18 Johns. R. 230.]

(23) Barclay v. Bailey, 2 Campb. N. P. C. 527. This was an action against the drawer of a bill. At eight o'clock in the evening of the day on which it became due, it was presented at the house of the acceptor in London, for payment; aud the answer given was, that the acceptor

o'clock in the evening is not an unseasonable hour for making a presentment. (a)

And no objection can be made to a presentment on the ground of its being at an unseasonable hour if a person is stationed there at the time to give an answer. (24)

Therefore a presentment at a banker's out of the usual hours will be unobjectionable, if the banker or any agent onhis behalf, is there at the time of such presentment. (24)

A presentment for acceptance is not (25) necessary, except upon bills payable within a limited time after sight.

had become bankrupt, and had removed into another quarter of the town. It was, however, proved that a person had been stationed at the house from nine o'clock till four, for the purpose of taking up this bill, but that it was not presented within those hours. Lord Ellenborough held, that the acceptor being a common trader, not a banker, the presentment was good; and said, that eight o'clock in the evening, could not be considered an unseasonable hour for demanding payment at the house of a private merchant who had accepted a bill. Verdict for the plaintiff.

Morgan v. Davison, 1 Stark. 114. A bill made payable at Herring & Co.'s (not bankers), Copthall-court, was presented there between six and seven in the evening of the day it became due; there was only a girl there, who was left to take care of the counting-house. In action by endorsee against drawer, Lord Ellenborough held this a sufficient presentment, the hour being one at which the holder might reasonably expect to find the party in his counting-house.

[(a) But carrying a bill or note not payable at any particular place to the place of business of the maker or acceptor, and finding it shut, will not be a sufficient presentment for payment unless it be done in business hours. Shed v. Brett, 1 Pick. 413.]

(24) Garnett v. Woodcock, 1 Stark. 476. In an action against the acceptor, on a bill made payable in London, and accepted payable at Dennison and Co.'s, plaintiff proved a presentment at Dennison and Co.'s between seven and eight o'clock in the evening, and that a boy returned for answer" no orders." It was insisted that this presentment, being at a London banker's, was at an unseasonable hour: but Lord Ellenborough said, if the banker appointed a person to attend to give an answer, a presentment at any time whilst that person was in attendance would be sufficient. Plaintiff had a verdict, and a rule to set it aside was refused.

(25) Molloy, B. 2. c. 10. § 16. "If a bill is drawn upon a merchant in London, payable to I. S. at double usance, I. S. is not bound in strictness of law to procure an acceptance, but only to tender the bill when the money is due."

Beawes, 266. p. 453. "There is no obligation to procure acceptance to a bill payable at a day certain, as the time goes on, whether accepted or not; but it is otherwise with bills payable at so many days sight." See also Mar. 12, 13, and Blesard v. Hirst, and Goodall v Dolley, post.

No (26) certain time is fixed within which this presentment must be made, but it should (27) be made within a reasonable time.

What shall be deemed a reasonable time must depend upon the particular circumstances of each case.

Keeping it a whole day, exclusive of the day of receiving it, without negotiating it or sending it for acceptance, is not necessarily an unreasonable delay. (28)

No delay warranted by the common course of business is improper, nor is any delay which is occasioned by keeping the bill in (29) circulation at a distance from the place where it is payable; but a delay by locking it up for any length of time (30) is.

If a bill payable abroad at a certain time after sight is taken in a course of negotiation, (31) it is not necessary to send it by the first opportunity to the place where it is payable.

Indeed in all cases where a bill is remitted to a factor or agent, it may be his duty to apply for an acceptance, and he may be answerable for any loss his principal may suffer by a neglect; but this neglect does not affect the bill, if payable otherwise than after sight, nor the principal's right thereon. Vide Beawes, § 49, p. 420, Mar. 12, 13.

(26) Per Eyre C. J. and Heath J. H. Bl. 569. 570.

(27) Per Eyre C. J. 2 H. Bl. 569.

(28) Fry v. Hill, 7 Taunt. 397. Plaintiff took a bill at Windsor on Friday, payable in London a month after sight. What he did with it did not appear, but it was not presented for acceptance till Tuesday: it was left to the jury whether there was a default to present within a reasonable time, and they found for plaintiff; and on motion for a new trial, the court said, it would still be a question for the jury whether there had been a presentment in reasonable time; and as they had passed their judgment on that point, rule refused.

(29) See ante, n. (27).

(30) Per Buller J. 2 H. Bl. 170. See Muilman v. D'Eguino, infra, n. (31).

(31) Muilman v. D'Eguino, 2. H. Bl. 565. In debt on bond conditioned to pay certain bills drawn on India at sixty days after sight, in case they should be returned protested, defendant pleaded that they were not presented for acceptance within a reasonable time after the drawing : it appeared that they were drawn 5th of March, 1793; that they were endorsed on that day by defendant to plaintiffs, who procured them for a house at Paris; that plaintiffs sent immediate advice to the house at Paris, and on receiving their directions on 30th of April, sent them to India, where they arrived the 3d of October; on the 5th of October, the holder wrote to the drawee, who was from home, desiring him to accept the bills, and on the 17th of October, he sent an answer of re