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And while presentment in such cases is unnecessary it is advisable to present the bill for acceptance without delay, for a holder thereby strengthens his security, or in case of nonacceptance, acquires an immediate right to call on the other parties to the bill.80 If such a bill is presented the holder must conduct himself in the same way and make protest and give notice in the same manner, as upon a bill payable at so many days after sight. 81

$142. Presentment within reasonable time; effect of failure.

a. Statutory provision.- The Negotiable Instruments Law provides that: "Except as herein otherwise provided, the holder "of a bill which is required by the next preceding section to be "presented for acceptance must either present it for acceptance "or negotiate it within a reasonable time. If he fails to do so, the drawer and all indorsers are discharged.' 99 82 This provision is also contained in the English Bills of Exchange Act.83

b. General rule. The general rule is that a bill which is payable a certain time after date must be presented either before or at its maturity.84 If the bill be payable at sight or at so many days after sight, or on demand, then, as stated by Judge Story, "Unless there be some acquired and determinate usage of trade which ascertains and fixes a definite time within which the presentment must be made (for undoubtedly in such a case the usage would govern), the only rule that can be laid down is that it must be presented within a reasonable time; and what will be a reasonable time must depend upon all the circumstances of each particular case." 85

c. What is reasonable time.- What time will be considered reasonable time is dependent upon the circumstances of the case.86 The Negotiable Instruments Law provides that in determining what is "reasonable time" or an "unreasonable time," regard is to be had to the language of the instrument, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case. 87 As was stated by Judge Bigelow:

80. Fall River Union Bank V. Willard, 5 Metc. (Mass.) 216, 220; Allen v. Suydam, 17 Wend. (N. Y.) 368.

81. Story on Bills of Exchange, § 228.

82. Neg. Inst. L. (N. Y.), § 241. For same section in statutes of other States see Appendix.

83. English Bills of Exchange Act, § 40 (1), (2).

84. Groupy v. Harden, 7 Taunt. (Eng.) 159; Bachellor v. Priest, 12 Pick. (Mass.) 399, 406.

85. Story on Bills of Exchange,

§ 231.

86. Linville v. Welch, 29 Mo. 203. 87. Neg. Inst. L. (N. Y.), § 4.

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Ordinarily, the question whether a presentment was within a reasonable time is a mixed question of law and fact, to be decided by the jury under proper instructions from the court. And it may vary very much, according to the particular circumstances of each case. If the facts are doubtful or in dispute, it is the duty of the court to submit them to the jury. But when they are undoubted and uncontradicted, then it is competent for the court to determine whether the reasonable time required by law for the presentment has been exceeded or not." 88

§143. Presentment, how made.

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a. Statutory provision.- The Negotiable Instruments Law provides that: Presentment for acceptance must be made by or on "behalf of the holder at a reasonable hour, on a business day, "and before the bill is overdue, to the drawee, or some person "authorized to accept or refuse acceptance on his behalf; and

"1. Where a bill is addressed to two or more drawees who are not partners, presentment must be made to them all, unless one "has authority to accept or refuse acceptance for all, in which case presentment may be made to him only;

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"2. Where the drawee is dead, presentment may be made to "his personal representative;

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"89

"3. Where the drawee has been adjudged a bankrupt or an insolvent, or has made an assignment for the benefit of creditors, presentment may be made to him or to his trustee or assignee.' A similar provision is contained in the English Bills of Exchange Act.90 The term "holder" is defined by statute as the payee or indorsee of the bill or note, who is in possession of it or the bearer thereof.91 The presentment in case of a foreign bill of exchange should be made by a notary. But the statute recog

88. Prescott Bank v. Caverly, 7 Gray (Mass.), 217, 221. See also Gilmore v. Wilbur, 12 Pick. (Mass.) 124; Holbrook V. Burt, 22 Pick. (Mass.) 555. In the case of Mellish v. Rawdon, 9 Bing. (Eng.) 416, it appeared that the purchaser of a bill on Rio Janeiro, at sixty days' sight, the exchange being against him, kept it nearly five months, and the drawee failed before presentment; it was held that the delay was not unreasonable. Tindal, C. J., said: "The bill must be forwarded within a reasonable time under all the circumstances of the case, and there must be no unreason

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able or improper delay. Whether there has been, in any particular case, reasonable diligence used, or whether unreasonable delay has occurred, is a mixed question of law and fact, to be decided by the jury, acting under the direction of the judge, upon the particular circumstances of each case.”

89. Neg. Inst. L. (N. Y.), § 242. For the same section in statutes of other States see Appendix.

90. English Bills of Exchange Act, § 41 (1).

91. Neg. Inst. L. (N. Y.), § 2. 92. Burlington First Nat. Bank v. Hatch, 78 Mo. 13.

nizes the validity of a presentment made by a duly authorized agent of the holder.

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b. To whom presentment should be made. The statute declares the general rule as to the proper person to whom a bill should be presented for acceptance.93 It has been said that, "In making a demand for an acceptance, the party ought, if possible, to see the drawee personally, or some agent appointed by him to accept; and diligent inquiry must be made for him, if he shall not be found at his house or place of business; but a demand for payment need not be personal, and it will be sufficient if it shall be made at one or the other place in business hours." 94 Although the statute recognizes the right of a person to authorize another to accept or refuse acceptance on his behalf, the holder may require the person acting in behalf of the drawee to clearly show his authority. If a bill is addressed to two or more drawees who are not partners, it may be accepted by each of such persons individually. The rules which have been hitherto discussed respecting presentment of bills and notes for payment are in many respects applicable to the presentment of bills for acceptance.97 c. Place of presentment. In respect to the place of the presentment of a bill for acceptance it may be well to quote from the opinion of Justice Wayne in the case of Wiseman v. Chiappella,98 as follows: "We infer, from all the cases in our books, notwithstanding many of them are contradictory to subsequent decisions, that the practice now, both in England and the United States, does not require more to be done, in the presentment of a bill of exchange to an acceptor for payment, than that the demand should be made of a merchant acceptor at his counting-room or place of business; and if that be closed, so in effect that a demand cannot be made, or that the acceptor is not to be found at his place of business, and has left no one there to pay it, that further inquiry for him is not necessary, and will be considered as due diligence; and that presenting a bill under such circumstances at the place of business of the acceptor will be prima facie evidence that it had been done at a proper time of the day."

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93. See Daniel on Negotiable Instruments, § 455.

94. Justice Wayne in Wiseman v. Chiappella, 23 How. (U. S.) 368, 377, 16 L. Ed. 466.

95. Atwood v. Munnings, 7 B. & C. (Eng.) 278.

96. Smith v. Milton, 133 Mass. 369. 97. See chap. VIII, ante.

98. 23 How. (U.S.) 368, 16 L. Ed. 466.

§ 144. Presentment on certain days; presentment where time is insufficient.

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a. On what days presentment may be made.— The Negotiable Instruments Law provides that: "A bill may be presented for "acceptance on any day on which negotiable instruments may be presented for payment under the provisions of sections 132 and "145 of this act. When Saturday is not otherwise a holiday, presentment for acceptance may be made before twelve o'clock noon on that day." 99 The effect of this section is to apply to presentment of bills for acceptance the provisions of the statute relating to the days on which an instrument may be presented for payment. We have already considered these provisions of the statute.1

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b. Presentment where time is insufficient. The Negotiable Instruments Law provides that: I Where the holder of a bill drawn payable elsewhere than at the place of business or the "residence of the drawee has not time, with the exercise of reason"able diligence, to present the bill for acceptance before presenting it for payment on the day that it falls due, the delay "caused by presenting the bill for acceptance before presenting "it for payment is excused and does not discharge the drawers 66 and indorsers." la This provision is also found in the English Bills of Exchange Act,2 and Mr. Chalmers says that it was inserted to settle a disputed point and, perhaps, alters the law.3 $145. When presentment is excused.

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The Negotiable Instruments Law provides that: Present"ment for acceptance is excused and a bill may be treated as "dishonored by nonacceptance in either of the following cases: "1. Where the drawee is dead, or has absconded, or is a ficti"tious person, or a person not having capacity to contract by 'bill;

99. Neg. Inst. L. (N. Y.), § 243. For same section in statutes of other States see Appendix.

1. See § 103, ante.

1a. Neg. Inst. L. (N. Y.), § 244. For same section in statutes of other States see Appendix.

2. English Bills of Exchange Act,

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able at a London bank. reaches the English holder, or his agent, on the day that it matures. He must, nevertheless, present it for acceptance to the drawees in Liverpool. The act provides that he shall not be prejudiced by so doing. Before the act the usual practice was to protest the bill in London with3. Chalmers on Bills of Exchange, p. out any presentment to the drawees, 133, where he says: "It settles a an obviously inconvenient mode of moot point and perhaps alters the law. proceeding, for the holder's object is Suppose a bill, payable one month to get the bill paid, and not to run after date, is drawn in New York up expenses against the drawer and on a Liverpool firm but is pay- indorsers.

§ 39 (4).

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"2. Where, after the exercise of reasonable diligence, presentment cannot be made;

"3. Where, although presentment has been irregular, accept994 ance has been refused on some other ground." This section seems to have been derived from a provision contained in the English Bills of Exchange Act.5 The section for the most part seems to be declaratory of the common law. The last subdivision is not supported by any American authority and seems to have been arbitrarily included in the law in recognition of the rule of the English act. The provision has little meaning except in con

nection with the rule that the fact that the holder has reason to believe that a bill will be dishonored on presentment does not excuse presentment. This provision was included in the English act as a corollary of the subdivision above referred to.

The circumstances which will excuse a presentment for payment of a negotiable instrument are analogous to those specified in the above section as excuses for a failure to present a bill for acceptance. Reference may be made to a preceding chapter for the purpose of ascertaining the sufficiency of such circumstances. A presentment for payment in the case of the death of a drawee or acceptor of a bill should be made to his personal representative, but where the bill is not yet accepted, presentment to a personal representative of the deceased drawee would be absolutely useless because of the fact that a personal representative cannot, by his own contract bind the estate of his decedent."

§ 146. Dishonor by nonacceptance.

a. When bill dishonored by nonacceptance.- The Negotiable Instruments Law provides that: "A bill is dishonored by non"acceptance:

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"1. When it is duly presented for acceptance, and such an acceptance as is prescribed by this act is refused or cannot be "obtained; or

"2. When presentment for acceptance is excused and the bill "is not accepted."8 The English Bills of Exchange Act contains a similar provision."

4. Neg. Inst. L. (N. Y.), § 245.
5. English Bills of Exchange Act,

§ 41 (2).

6. See § 101, ante.

7. Schmittler v. Simon, 101 N. Y. 554, 5 N. E. 452.

8. Neg. Inst. Law (N. Y.), § 246. For the same section in the statutes of other States see Appendix.

9. English Bills of Exchange Act, § 43 (1).

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