CHAPTER XIV. When a note is acceptor will be satisfied by proof that it was presented at the place where it was made payable, though no person were there in attendance (m), and though the acceptor did not live there (n). The statute 1 & 2 Geo. 4, c. 78 (o), does not extend to made so payable. promissory notes. If, therefore, a note be, in the body of it, made payable at a particular place, it is still necessary to aver and to prove presentment there (p), though the mention of the place be in a distinct sentence preceded by a full stop (q). By a supplementary memorandum. But if the place of payment be merely mentioned in a memorandum, that is held to be only a direction, and not to qualify the contract; and, consequently, a presentment there is not essential (r). And an averment in the declaration see Bush v. Kinnear, 6 M. & Sel. 210; Huffam v. Ellis, 3 Taunt. 415; Ambrose v. Hopwood, 2 Taunt. 61; De Bergareche v. Pillin, 3 Bing. 476; 11 Moore, 350, S. C. (m) Hine v. Allely, 4 B. & Ad. 624; 1 N. & M. 433, S. C.; and see Hardy v. Woodroofe, 2 Stark. 319. So where a bill was drawn on an acceptor at 38, Minto-street, accepted generally, and when due, the acceptor having changed his residence, was presented to a lodger at No. 38, the presentment was held sufficient. Buxton v. Jones, 1 M. & Gr. 83; 1 Scott, N. R. 19, S. C. (n) Hardy v. Woodroofe, 2 Stark. 319. (0) But notwithstanding this act, and independently of the decision in Gibb v. Mather, 8 Bing. 214; 2 Moo. & Scott, 387, S. C., if a bill be accepted, payable at a particular place (though not expressed to be payable there only, and not otherwise or elsewhere), the addition of the place where payable is not surplusage; for, upon default made at that place, the right of the holder to sue the previous parties to the bill is complete. Mackintosh v. Haydon, Ryan & Moody, 362; Hawkey v. Borwick, 4 Bing. 135; 12 Moo. 478, S. C.; Harris v. Packer, 3 Tyrw. 370; Smith v. Bellamy, 2 Stark. 223. Before the act, the holder must have presented there, and could present no where else. Now, he may present effectually there; but, as was supposed, until the decision in Gibb v. Mather, may also present to the acceptor himself. (p) Saunderson v. Bowes, 14 East, 500; Howe v. Borse, 16 East, 112; Rowe v. Young, 2 B. & B. 165; Williams v. Waring, 10 B. & C. 2; Emblin v. Dartnell, 12 M. & W. 830; Spindler v. Grellett, 17 L. J., Exch. 6; 1 Exch. 384, S. C.; but see Nichols v. Bowes, 2 Camp. 498. (q) Vanderdonckt v. Thelluson, 19 L. J., C. P. 13; 8 C. B. 812, S. C. (r) Price v. Mitchell, 4 Camp. 200; Williams v. Waring, 10 B. & C. 2; 5 M. & R. 9, S. C. But in a case where the body of the note was printed, except the sum, the names of the parties, and the date, and the memorandum of the place at which the note was payable, was also printed, Lord Ellenborough held a special presentment there necessary. Trecothick v. Edwin, 1 Stark. 468; sed quære. The memorandum is no part of the note, though it be preceded by the words "payable at." Masters v. that the note was made payable there, has even been held a fatal misdescription (s). CHAPTER not duly pre The consequence of not duly presenting a bill or note is Consequence of that all the antecedent parties are discharged from their senting. liability, whether on the instrument, or on the consideration for which it was given. The acceptor or maker, however, still continues liable. And, indeed, presentment is not in general necessary for the purpose of charging him; the action itself being held to be a sufficient demand, and that though the instrument be made payable on demand (t). But if a bill or note be payable at after sight, it must be presented in order to charge the acceptor or maker (u). So must a note payable at a particular place, as we have just seen (x). But though the absence of demand be in general no defence, yet if the acceptor or maker pays on action brought without any previous demand, it seems the Court would, where they have the power, take the question of costs into consideration (y). Presentment not necessary to charge acceptor. There are circumstances, however, which will excuse the NEGLECT TO neglect to present for payment (z). Where a bill is seized under an extent, the indorsers are not discharged by non-presentment, for laches is not imputable to the Crown (a). Neglect of presenting for payment is, as we have seen, excused in the case of a bank note payable on demand, and perhaps of other paper meant for circulation, if the holder, Barretto, 19 L. J., C. P. 50; 8 C. (8) Exon v. Russell, 4 M. & Sel. 505. (t) Rumball v. Ball, 10 Mod. 38; Frampton v. Coulson, 1 Wils. 33; Norton v. Ellam, 2 M. & W. 461. (u) Dixon v. Nuttall, 1 C., M. & R. 307; 6 C. & P. 320, S. C. (x) Rhodes v. Gent, 5 B. & Al. 244. Quære, as to the effect of non-presentment of a bill at a particular place, if the drawee had lodged money there and lost it by the holder's delay. (y) M'Intosh v. Haydon, 1 R. & M. 362. (:) An impossibility to present a bill for payment on the day it falls due, where the holder is in no fault, may render a subsequent presentment sufficient to charge the drawer; aliter of negligence or oversight in the Post Office, by which a bill miscarries, so that it cannot be presented till after it is due. The fact that a bill is lost is an excuse for delay in making demand, but for no more than a reasonable delay. See Byles on Bills, 5th American edition, p. 346. (a) West on Extents, 29, 30. PRESENT, where bill or note seized under an extent. When neglect to present excused by circulating. CHAPTER By the absconding of the drawee. By absence of effects in the drawee's hands. Not by declaration of acceptor that he will not pay. By returning notes. Advantage from such neglect, how waived. within the period at which he should have presented it, puts it into circulation (b). If the acceptor or maker abscond, and his house be shut up, the bill or note may be treated as dishonoured; but not if he have merely removed (c). If the drawee cannot be found, it will be sufficient to plead that fact, without averring that due search was made for him (d). Under an allegation that the bill was presented, evidence that the drawee could not be found is inadmissible (e). Absence of effects in the drawee's hands will, as against the drawer, dispense with the necessity of presenting for payment (ƒ), but not as against a subsequent indorser (g). A declaration by the acceptor, before a bill is due, that he will not pay, though made in the drawer's presence, does not dispense with presentment to the acceptor and notice to the drawer (h). It has been held, that neglect to present bankers' cash notes, the banker having failed, will be excused by returning them in due time (¿). Advantage from such neglect is waived by any antecedent party who subsequently, with notice of the laches, promises (b) Camidge v. Allenby, 6 B. & C. 373; 9 Dowl. & R. 391, S. C. (c) Anon., 1 Ld. Raym. 743; Hardy v. Woodroofe, 2 Stark. 319; Hine v. Allely, 4 B. & Ad. 624; 1 N. & M. 433, S. C.; Collins V. Butler, 2 Stra. 1087. See also Sands v. Clarke, 19 L. J., C. P. 84; 8 C. B. 751, S. C. Where the maker of a note is a seaman without a domicil in the State, who goes a voyage about the time the note falls due, no demand on him is necessary to charge the indorser. Absence of the maker of a note on a voyage at sea, his family still residing in the State, will not excuse a demand of payment so as to discharge an indorser. See Byles on Bills, 5th American edition, p. 346. (d) Starke v. Cheeseman, Carthew, 509; 1 Ld. Raym. 538, S. C. (e) Leeson v. Piggott, 1788; Bayley, 6th ed. 409; and see (f) Terry v. Parker, 1 Nev. & (g) Saul v. Jones, 28 L. J., Q. B. 37; 1 E. & E. 59, S. C. (h) Ex parte Bignold, 1 Deac. (i) Henderson v. Appleton, See to pay the bill, or makes, or promises to make, a partial payment on account of it (k). CHAPTER As to the proper mode of pleading, where the plaintiff Pleading. relies on any dispensation with presentment, see the Chapter on PLEADING. The defendant's part payment or promise to pay, made Evidence of after the bill or note is due, is primâ facie evidence of pre- presentment. sentment (1). (k) Vaughan v. Fuller, 2 Stra. 1246; Hopley v. Dufresne, 15 East, 275; Haddock v. Bury, 7 East, 236; Hodge v. Fillis, 3 Camp. 463. See Goodall v. Dolly, 1 T. R. 712; Anson v. Bailey, B. N. P. 276. (1) Croxon v. Worthen, 5 M. & W. 5; Lundie v. Robertson, 7 East, 232; Campbell v. Webster, 15 L. J., C. P. 4; 2 C. B. 258, S. C.; Greenway v. Hindley, 4 Camp. 52. CHAPTER TO WHOM IT MADE. PAYMENT should be made to the true holder of the bill (a); for payment to any other party is no discharge to the acceptor; unless, indeed, the money paid finds its way into the holder's hands, and the holder has treated is as received in liquidation of the bill. A. drew a bill upon defendant, which defendant accepted; A. then indorsed it to the plaintiffs, his bankers, who entered it to the credit of plaintiffs' account, and, at maturity, presented it to the defendant for payment, and it was dishonoured. The plaintiffs then debited A. with the amount, but did not return him the bill. A few days afterwards defendant paid the amount to A.; A. still continued his banking account with the plaintiffs, and, at different times, paid in more money than was sufficient to cover the amount of the bill, and all the preceding items which stood above it in the account, (a) See the definition of the word holder, ante, Chapter I. |