[A bill or note must be presented. for payment on the very day on which it becomes due. (a)]

If a man takes a bill on the eve of its becoming due, and it is payable at a distant place, he must not keep it by him so as to prevent its being presented for payment on the day it becomes due. (48)

case the bank did not fail, but it was the act of the defendant himself which defeated the payment of the check, by drawing out the money, which, in good faith, was to be considered as appropriated for the payment of the check. Although checks are now considered substantially the same as inland bills, 1 know no case which goes the length of exonerating the drawer, where the responsibility of the bank has remained good, and where he was himself the cause of the non-payment by withdrawing the money." Conroy v. Warren, 9 Johns. Cas. 259.

So an order drawn by a debtor in favor of his creditor must be presented to the drawee within a reasonable time, otherwise the drawer is discharged.

Jones gave Brower an order on Smith dated December 9th, 1804; and Smith at the time it was drawn agreed with Brown to pay the money in about ten days; the order was not presented then, and Smith would have paid the money had the order been presented within two or three weeks from the date; the order was afterwards presented to Smith several times during the winter and also in March, 1805, when Smith had become embarrassed and unable to pay his debts. The court held that independently of the neglect to present at the time Smith agreed to pay it, and independently of the neglect to give notice, Jones was discharged by the negligence of Brower, whereby the money was wholly lost. Brower v. Jones, 3 Johns. R. 230.]

[(a) Johnson v. Haight, 13 Johns. R. 470.

But the strict rules as to presentment and notice have not been enforced in all our States.

In a case in New Hampshire where the holder and maker resided about fifteen miles apart, and in a thinly settled country, a presentment eight days after the note fell due, was held to be sufficient to charge the endorser. Haddock v. Murray, 1 New Hamp. R. 140.

In a case in Pennsylvania in 1792, where notice of non-payment of a note was not given to an endorser until four or five days after it became due, M'Kean C. J. observed that before the Revolution it was not usual to give notice to an endorser or even to call upon the maker as soon as a note became due; and that to have done so would have been considered harsh and unreasonable. Bank of N. America v. M'Knight, 2 Dall. R. 188. See also 2 Dall. 233, and Gurly v. Gettysburgh Bank, 7 Serg & Raw. 324.]

(48) Anderton v. Beck, 16 East. 248. 26th December plaintiff received in Yorkshire a bill payable in London, 28th; he kept it till the 29th, and then sent it to the Lincoln bank, who forwarded it to London without delay, and it was received in London and presented for payment 2d January; plaintiff had no correspondent in London; the bill was dishonored, and in an action for goods sold, the question was, whether this bill was payment? Bayley J. thought it was, and verdict for defendant; and on motion to enter verdict for plaintiff, the court held, that as plain

And if he takes it so near the time of its becoming due, that it will be impossible to present it on the day it becomes due, he must lose no time in forwarding it, or putting it into circulation, so that it may be presented without delay. (48)

If a bill is payable at either of two places, the person taking it has the option at which to present it; and it cannot be imputed as laches in him that he presented it at the most distant, and that if he had presented it at the other it would have been paid. (49)

A (50) bill or (51) note importing to be payable within a

tiff submitted to take this bill, he was bound to use due diligence in presenting it, and that he had been guilty of laches in keeping it from the 26th to the 29th; he might have sent it off the 27th or 28th. Rule refused.

[But in a case in Massachusetts where the maker of a note resided at a distance from the endorsee, the court held that a reasonable time should be allowed after the note became due, to transmit it, the endorsee having a right to wait for payment at his own residence, before he was obliged to follow the maker to his house to make the demand. In that case the note fell due on the fourth of June, the holder residing at Boston, and the maker and endorser at Wiscasset, about two hundred miles from Boston, and the court appeared to think that a demand on the ninth or tenth of June at Wiscasset would have been seasonable, but the case turned upon another point. Freeman v. Boynton, 7 Mass. R. 483.]

(49) Beeching v. Gower, Holt. 313. Plaintiff took of defendant at Tunbridge, on 5th March, a 107. Kentish bank note, payable on demand at Maidstone or at Messrs. Ramsbottom's, London. Plaintiff sent the note to London the same day, and it was presented at Ramsbottom's on the 6th, but they ceased paying that day; the Kentish bank paid all the 6th, so that had it been sent to Maidstone it would have been paid; defendant insisted that plaintiff ought to have sent it to Maidstone, which was nearer, and where plaintiff had a clerk; Gibbs C. J. was clear that as the note was payable at either place, plaintiff had his option at which to present it; and verdict for plaintiff.

(50) Colman v. Sayer, 1 Barnard. B. R. 303. In an action upon an inland bill payable six days after sight, one question was, whether three days' grace are allowed where a bill is payable at certain days after sight, as well as where it is payable upon sight? and Raymond C. J. said they were allowable in one case as well as in the other. Another question was, whether they were allowable upon inland as well as upon foreign bills? and the common serjeant and foreman of the jury said it was the constant practice in the city to allow them in both cases; upon which Raymond C. J. said he would not alter it; but the plaintiff was nonsuited on another point.

(51) Brown v. Harraden, 4 Term. Rep. 148. In an action on 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

limited time after a certain event, or (52) at sight, is not in fact payable until (53) two days afier the expiration of that time, nor unless the third be a day of public rest, until (53) three.

These extra days are called days of grace.

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. 21, note (21). 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, B. R. T. 24 G. III. 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.

[The rules as to days of grace in the United States are generally the same as those stated in the text. Farnum v. Fowle, 12 Mass. R. 89; Jackson v. Richards, 2 Cain. R. 344; Johnson v. Haight, 13 Johns. R. 470; Bussard v. Levering, 6 Wheat. R. 102; Norton v. Lewis, 2 Conn. R. 198; Widgery v. Munroe, 6 Mass. R. 449; Shepard v. Hall, 1 Conn. R. 329.

In the United States the fourth of July is generally considered a day of public rest, and it has been held in New York that if the third day of grace falls on that day, a demand must be made the preceding day. In a case in New York where the third day of grace fell on the fourth of July, the jury found by a special verdict that it was the general practice and usage of the city of New York ever since 1784, where the last day of grace fell on the 4th of July to demand payment and give notice on the third. The court held the demand sufficient. Benson J. delivered the opinion of the court. "Whenever a practice, usage, or custom hath obtained for a length of time, so as that it may be presumed to be generally known; then all contracts to which it may be applicable, shall be interpreted and governed by it." Lewis v. Burr, 2 Cain. Er. 195.

The Supreme Court of Massachusetts formerly held that a promissory note was not entitled to grace, unless expressly made payable with grace. Jones v. Fales, 4 Mass. Rep. 251. But merchants were never satisfied with this doctrine. And Mr. Dane says, when the court gave the opinion in Jones v. Fales, as to grace, it was new. Gentlemen, old in practice, understood that we had adopted the English law as to this, as we had the other parts of that law, in regard to negotiable contracts." 1 Dan. Dig. 413. A statute has recently been passed in Massachusetts giving days of grace to promissory notes. St. 1824, c. 130]

Different (54) countries vary in the number of days allowed by way of grace; and in two cases 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 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. (a)

(54) Beawes, 260. 1st ed. p. 449. The number allowed by the Hamburgh ordinance, art. 16., is twelve.

(55) Goldsmith and another v. Shee, C. P. cor. Lord Eldon, 20th of December, 1799. A bill for £500 drawn on Katter at Hamburgh, at three usances, was dated the 25th of June, 1799; it was presented for payment the 4th of October, which was a post day. In an action by the endorsees 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 £998, 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 £261, 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 endorsers, 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 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 £1633 See the proceding note.

[(a) It is the custom of the banks in the District of Columbia to demand payment of notes on the fourth day after the time limited for payment, instead of the third; and it was held, that a demand on the fourth

In this country [England] 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.

Upon a bill or note payable within a limited time after sight, the time must be computed from its (59) presentment

day upon the maker of a note held by one of these banks was sufficient to charge an endorser who was acquainted with the custom. Renner v Bank of Columbia, 9 Wheat. R. 581.]

(57) Leftley v. Mills, post, p. 166. 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 authorize the holder to have recourse to the drawer, and the plaintiff was nonsuited.

[So a bill at five days sight accepted Oct. 1st, is due Oct. 9th, and a presentment for payment Oct. 8th is too early, and will not charge the parties to the bill. Mitchell v. Degrand, 1 Mason, 179.

So a demand on the day of payment expressed in a note without reckoning any days of grace, and notice to the endorser predicated on that demand, are wholly nugatory. Griffin v. Goff, 12 Johns. R. 423; Farnum v. Fowle, 12 Mass. R. 89.

So a demand on the day before a note becomes due, is not sufficient to charge an endorser. Henry v. Jones, 8 Mass. R. 453.]

(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 Hamburg 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 acceptance. See Campbell v. French, 6 Term Rep. 200.

[Where a bill payable at so many days sight, is presented one day and accepted the next, the number of days must be computed from the day on which it is accepted, not from the day on which it was presented; the acceptance cannot be considered as relating back to the presentment. A bill payable in so many days after sight means so many days after legal sight; and a general acceptance is an agreement to pay in so many after the acceptance, for that is the sight which the drawee admits and refers to. Mitchell v. Degrand, 1 Mason, 176.]