Upon a presentment for acceptance, -the bill should be left with the drawee (32) twenty-four hours, unless in the interim he either accepts or declares a resolution not to accept.

fusal; some of the bills were thereupon protested 29th of October, and the rest 18th of November. Eyre C. J. left the case to the jury, but told them, he thought the bills had been sent to India in time, as they were put up here for negotiation, and were therefore liable to be delayed, and that they were presented in India in time after their arrival. The jury found for the plaintiff; and on a rule to shew cause why there should not be a new trial, and cause shewn, the court was satisfied with the verdict, and plaintiff had judgment. Eyre C. J. said, "It is not necessary to lay down any new rule as to bills of exchange payable at sight, or within a given time afterwards; if it were, I should feel great anxiety not to clog the negotiation of bills circumstanced like these. It would be a very serious and difficult thing to say, that a person buying a foreign bill, in the way these were bought, should be obliged to transmit it by the first opportunity to the place of its destination. There would also be a great difficulty in saying at what time such a bill should be presented for acceptance. The courts have been very cautious in fixing any time for presenting for acceptance an inland bill, payable at a certain period after sight, and it seems to me more necessary to be cautious with respect to a foreign bill payable in that manner. I think, indeed, the holder is bound to present the bill in reasonable time, in order that the period may commence from which the payment is to take place; but the question, what is reasonable time, must depend on the particular circumstances of the case; and it must always be for the jury to determine whether any laches are imputable to the plaintiff.". Per Buller J. "The only rule I know of, which can be applied to the case of bills of exchange, is, that due diligence must be used. Due diligence is the only thing to be looked at, whether the bill be foreign or inland, and whether it be payable at sight, at so many days after, or in any other manner. But I think a rule may thus far be laid down as to laches, with regard to bills payable at sight, or a certain time after sight, namely, that they ought to be put in circulation; and if a bill drawn at three days sight were kept out in that way for a year, I cannot say there would be laches; but if instead of putting it in circulation, the holder were to lock it up for any length of time, I should say that he would be guilty of laches, but farther than this, no rule can be laid down." Per Heath J. "No rule can be laid down as to the time for presenting bills payable at sight, or at a given time afterwards. In the French ordinances of 1673, in Postlethwaite and Marius, it is said, That a bill payable at sight or at will is the same thing.'"

Goupy v. Harden, Holt, 342. 7 Taunt. 159. 2 Marsh 454. A bill drawn in London 12th May, 1815, at thirty days after sight, on a house at Lisbon, was remitted by defendant to plaintiff at Paris. Plaintiff endorsed it to a house at Genoa; they negotiated it, and it was not till 22d August that it reached Lisbon, and was presented for acceptance; before that time, viz., on 15th July, the drawer failed, and on that account acceptance was refused. It was urged for defendant, that it was unwarrantable in plaintiff to send the bill to Genoa, instead of transmitting it to Lisbon for acceptance: but Gibbs C. J. thought otherwise;

But a bill or note must not be left (unless it is paid) on a presentment for payment; if it be, the presentment is (33) not considered as made until the money is called for.

[A demand of payment, by a person who has not the bill or note with him at the time, is not a sufficient presentment. (a).

and the jury said such a bill might be sent round the world before it was presented for acceptance, and found for the plaintiff. On motion for a new trial, Gibbs C. J. relied upon Muilman v. D'Eguino, in which, he said, the point had been deliberately considered, and he was clearly of opinion that the plaintiff had not taken the risk upon himself by sending the bill into circulation; and the jury having been of opinion that the bill had been presented in reasonable time, a rule was refused. [A bill was drawn in Augusta, Ga. March 6th, 1819, upon persons in New York, payable sixty days after sight to Ross and Starr or order, and was by them endorsed to Robinson. The mail goes from Augusta to New York in ten days, and leaves Augusta three times a week, and the mail of March 10th was lost. The bill was presented for acceptance May 20th, 1819. The court held that this was not such a delay to present the bill as discharged the drawers. Spencer C. J. delivered the opinion of the court. "I do not find that where a bill of exchange has been drawn payable at sight, or any specified number of days after sight, that there is any definite or fixed rule when the bill shall be presented for acceptance, other than this, that due diligence must be used. And it is certain with respect to such bills, and particularly where they are negotiated by the payee, there is much more latitude as to the time of presentment, than where the bill has a fixed period of payment. Now here the bill was put in circulation by Ross and Starr; and although it is probable that the first of exchange was lost, by the loss of the mail, we are not authorized to consider that as a fact in the case; but I cannot say that upon such a bill there has been laches." Robinson v. Ames, 20 Johns. R. 146.

A bill was drawn in Antigua upon London, payable at ninety days after sight, dated July 18th, 1817, it was endorsed by the payee, and by two other parties. Packets go from Antigua to London regularly once in every month or forty days. The bill was presented for acceptance Jan. 16th, 1818. It was held that there was no laches in presenting, and that the drawer was not discharged in consequence of the delay. Gowan v. Jackson, 20 Johns. R. 176.]

(32) Vide Mar. 2d ed. 16. Moll. b. 3. c. 5. § 1. Lord Raym. 281. (33) Hayward v. Bank of England, Str. 550. Hayward kept cash at the bank, and paid in a banker's note; the runner to the bank left it the next morning, and called for the money in the afternoon, but in the interval the banker had stopped; and though this appeared to be the usual practice at the bank, King C. J said, it was dangerous to suffer persons to deal with notes in that manner, and that the Common Pleas were of that opinion in the like case; and he directed the jury to find for the plaintiff, which they did. Sed vide Turner v. Mead, and Hoar v. Da Costa, post. p. 144 and 145.

[(a) Freeman v. Boynton, 7 Mass. R. 483; Haddock v. Murray, 1 N. Hamp. R. 140.

It was heid in a case in New Hampshire, where the note was in a bank

A presentment by any person in possession of a bill or note bonâ fide, is sufficient to charge the parties to the instrument, and no letter of attorney or other writing from the proprietor of the bill or note, is necessary to give an authority to another person to make a presentment. (a)]

The time when a presentment for payment must be made depends upon the time when a bill or note is payable.

A bill or note payable on demand must not be kept locked up; if it be, the loss will fall on the holder. (34)

And it will be no excuse that it would not have been paid had it been presented sooner. (34)

A bill or note payable on demand, is payable immediately upon presentment; and unless put into circulation must be presented within a reasonable time after the receipt. (b)

a few rods from the house of the maker, that a letter sent to the maker's house informing him of this fact and requesting payment, was a sufficient presentment to charge an endorser. 1 N. Hamp. R. 80.]

[(a) Freeman v. Boynton, 7 Mass. R. 483; Bank of Utica v. Smith, 18 Johns. R. 230; Hartford Bank v. Stedman, 2 Conn. R. 489; Morris v. Foreman, 1 Dall. 193.

A presentment of a note for payment was made by a notary public at the request of the endorsee, the court said that there was no room for question that the demand was sufficient. Parker C. J. said, "The demand may as well be made by an agent, as by the principal, and there is no need of a power of attorney or any written instrument to constitute an agent for this purpose." Shed v. Brett, 1 Pick. 401.]

(34) Breching v. Holt, 315. Plaintiff took of defendant at Tunbridge, on the 5th, before the Maidstone post went out, a £20 Maidstone bank note, payable on demand; he kept it till the morning of the 7th, and then sent it by the carrier who reached Maidstone at nine in the morning of the 7th; the post of the 6th reached Maidstone an hour sooner; the bank did not open that day: Gibbs C. J. held that there were laches in plaintiff, and he directed a nonsuit.

[(b) Redfield and Beers made two notes dated Jan. 31st, 1814, payable on demand to Nickerson. Nickerson endorsed the note for the accommodation of R. and B. R. and B. informed Nickerson that the money would not be demanded immediately. A demand was made on R. and B. Sept. 23d, 1814, and immediate notice of non-payment given to Nickerson. The holder and the other parties to the note all resided in Boston. In an action against Nickerson as endorser, Parker C. J. charged the jury, that a demand on this note must be made in a reasonable time; and that what was reasonable time was a question of law arising from the facts which appeared; and that the delay of eight months was unreasonable. Verdict for defendant. Parker C. J. delivered the opinion of the court. "A promissory note payable on demand, is like a bill payable at sight. As in the latter case the holder must present his bill for acceptance within a reasonable time, in order

It has (35) not been expressly decided whether what shall be considered as a reasonable time is to be taken as a question of fact for the determination of the jury, or as a question of law for the determination of the court. In Darbishire v. Parker, (36) Lawrence J. intimated very decidedly that it

to charge the drawer, so in the former the endorsee must make demand of payment on the promiser within a reasonable time, in order to charge the endorser. Was the demand in this case made in a reasonable time? The jury have said no, and they were perfectly justified in returning that answer." Field v. Nickerson, 13 Mass. R. 131.

In an action in New York against the endorser of a note payable on demand, where the holder of the note, the maker, and the endorser, all resided in the city of New York, and no demand was made on the maker until more than five months after the date of the note, it was held that this was an unreasonable delay, and that the endorser was discharged. Sice v. Cunningham, 1 Cowen, 397.

In an action against the endorser of a note payable on demand, dated September 4th, 1819, where no demand was made until after May 6th, 1820, Story J. said, Payment of a note payable on demand, must be demanded within a reasonable time, otherwise the endorser is discharged." "Unless there be circumstances in the case which account for the delay, a neglect to demand payment of such a note for more than seven months is an unreasonable delay, and discharges the endorser." Martin v. Winslow, 2 Mason, 241.]

(35) See ante, Muilman v. D'Eguino, p. 138. note (31). Tindal v. Brown, post, p. 161. note (74). Appleton v. Sweetapple, post, p. 146. note (43). Hankey v. Trotman, post, p. 146. note (45), and Hilton v. Shepherd, Hopes v. Alder, and Darbishire v. Parker, infra, note (36).

(36) Whether it is the province of the judge or of the jury, to decide upon the reasonableness of notice, has never been expressly determined. In Tindal v. Brown, post. p. 161. note (74), Lord Mansfield considered it as a question partly of fact and partly of law: Ashhurst and Buller Js. as a question of law. In the two cases of Hilton v. Shepherd, and Hopes v. Alder, 6 East's Rep. pp. 14. 16. note, Lord Kenyon considered it as a question for the jury, under all the circumstances of accident, necessity, and the like. But the judgment of Lawrence J. in Darbishire v. Parker, shows it was his decided opinion that it was an inference of law, to be drawn by the court from the facts, which (as in all other cases) were to be found by the jury.

Darbishire and another v. Parker, 6 East's Rep. 3. The plaintiffs received at Manchester notice of the dishonor of a bill, between eight and nine o'clock in the morning of the 12th of August. The post from Manchester to Liverpool, where the drawer resided, set off between twelve and one o'clock at noon. They however sent no notice by the post of that, or the next day, but sent it by a private hand on the 13th, by which it was delivered about nine o'clock at night, two hours later than it would have arrived had it been sent by the post. Lord Ellenborough left it to the jury, whether reasonable notice had been given, and they found for the plaintiffs. A new trial was moved for, on the ground of a misdirection, and a rule nisi granted. The court, without entering into the general question, held that the case deserved recon

was a question of law for the judges, and yet in many instances since it has been treated as a question of fact for the jury. (37)

sideration; inasmuch as the plaintiffs appeared, at all events, to have been guilty of laches, whether the notice should have been sent by the post of the 12th or by that of the next day, having failed in doing either. Rule absolute. In this case, Lawrence J. on the general question, whether reasonable notice be a question of law or of fact, said, "It must be recollected, that the facts stated in the report of Tindal v. Brown were afterwards found in a special verdict, in which the jury did not find whether the notice were reasonable or not; on which special verdict this court gave judgment for the plaintiff, and that judgment was unanimously confirmed in the Exchequer Chamber. But if reasonable notice were a question of fact, and not of law, I am at a loss to know how those judgments are to be sustained; for the jury did not find the fact of reasonable notice, but left that as a question of law to be inferred from all the circumstances. But if it were a question of fact, there ought to have been a venire de novo in that case.' In Bail v. Wardell, Willes, 204, 6., where a custom was pleaded for the inhabitants of a town to walk and ride over a certain close of the plaintiff's at all seasonable times, what was to be deemed a seasonable time was considered to be a question of law, arising out of all the circumstances; of which Lord C. J. Willes, says, "the court were the proper judges, as in the case of reasonable time, reasonable fines," &c. "For," he adds, "what is contrary to reason cannot be consonant to law, which is founded on reason; and therefore the reasonableness in these and the like cases depends on the law, and is to be decided by the judges." And in the same case he says, "issues may be joined on things which are partly matters of fact, and partly matters of law; and then, when the evidence is given at the trial, the judge must direct the jury how the law is; and if they find contrary to such direction, it is a sufficient reason for a new trial.

See also Anderson v. Royal Exchange Assurance Company, 7 East's Rep. 43., in which Lord Ellenborough, in speaking of the time within which the assured may abandon the property insured, says, "an abandonment must be made within a reasonable time; and I rather conceive that it is the province of the judge to direct the jury as to what is a reasonable time under the circumstances." See also Bateman v. Joseph, post. See also Co. Lit. 56 b. “Reasonable time shall be adjudged by the discretion of the justices before whom the cause dependeth: and so it is of reasonable fines, customs, and services, upon the true state of the case depending before them; for reasonableness in these cases belongeth to the knowledge of the law, and therefore to be decided by the justices." "For nothing that is contrary to reason is consonant to

law."

[In a case in New York, Kent C. J., in delivering the opinion of the court, says, "The questiou of reasonable notice is a compound of law and fact, to be submitted to a jury." Taylor v. Bryden, 8 Johns. R. 136.

In the case of Hussey v. Freeman, Sewall J. says, "The endorser is entitled to seasonable notice: and what is seasonable notice is a question of law, to be decided by the court, as soon as the facts necessary to the decision are ascertained." 10 Mass. R. 84.