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sentment is neces

sury.

1st. When pre- precise time, and he neglects to do so, he will lose his remedy, as well on the bill as upon the consideration rodebt, in respect of which it was given or transferred. It appears that a distinction was formerly taken between a bill of exchange given in payment of a precedent debt, and one given for a debt contracted at the time the bill was given '; in the latter case, it was always holden, that the person who received it must have used due diligence to obtain the money from the drawee, and that in default of his so doing, he could not support any action against the party from whom he received it; but in the former case, the bill was not considered as payment, unless the money were actually paid by the drawee, although the holder might have neglected to present it for payment or to give notice of non-payment; and the holder, though he could not sue on the bill, might maintain an action for the consideration on which it was given. This distinction, founded, it is presumed, on the principle that a bill, delivered in consideration of a precedent debt, could only be understood as a collateral security, which the assignee might waive, does not any longer exist.

It has been holden that even the bankruptcy, insolvency', or death of the acceptor of a bill, or maker of

I Ante, 185.

2 Clerk v. Mundall, 12 Mod. 203.-1 Salk. 124. S. C.-Anony. mous, 12 Mod, 408.-Anonymous, Holt, 299.-Trials per Pais, 499. -Kyd. 171.

3 Ante, 125, 185.-Bul. Ni. Pri. 182.-Smith v. Wilson, Andr. 187: It seems to be the opinion of a modern writer on bills (Kyd. 172.) that the statute 3 & 4 Anne, c. 9. s. 7. put an end to this distinction; but with deference it is submitted that the clause referred to in sup port of that opinion, relates only to such bills as are alluded to in the 4th section of the act, namely, bills made payable after date, and expressed to have been given for value received; and the 7th clause also only takes away the accumulative remedy given by the statute 9 & 10 Will. 3. c. 17. and 3 & 4 Anne, c. 9. It is therefore probable that this alteration is rather to be ascribed to the change of opinion in our courts of justice.

4

Russel v. Langstaffe, Dougl. 515. Per Lord Mansfield, because many means may remain of obtaining payment by the assistance of friends or otherwise. Per Lord Ellenborough, in Warrington v. Furbor, 8 East. 245.-Ante, 271, 2.-Bayl. 115.

5 Per Lord Ellenborough, in Esdaile v. Sowerby, 11 East. 117.

sentment is neces

a note, however notorious, will not excuse the neglect 1st. When preto make due presentment; and in the last case it should sary. be made to his personal representative, and in case there be no executor or administrator, then at the house of the deceased', or the drawer or indorsers will be discharged. If the maker of a note has shut up his house, it will not suffice merely to present it there, for the holder ought to inquire after him, and endeavour to find him out. At all events, although the drawee of a bill, or maker of a note, being bankers, may have shut up and abandoned their shop, yet a presentment there, or to them in person, must be made, and it will not suffice to allege in a declaration, that they became insolvent, and ceased and wholly declined and refused to pay at their bank any notes then pay

able '.

Ante, 271, 2.—Bowes v. Howe, 5 Taunt. 30.-16 East. 115. S. C.-
Bayl. 115.

Molloy, b. 2. c. 10. s. 34. If a bill be accepted and the party dies, yet there must be a demand made on his executors or administrators, and in default of payment, a protest must be made. See also Bayl. 95, and ante, 273, 4.

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Collins v. Butler, 2 Stra. 1087.-Bayl. 95.-Ante, 213; but see Goldsmith v. Bland, & Crosse v. Smith, 1 M. & S. 545.-Ante,276,7. 3 Howe v. Bowes and others, 16 East. 112.-1 M. & S. 555.Judgment of K. B. reversed on error in Exchequer Chamber, 5 Taunt. 30. The plaintiff declared as holder of a promissory note, made by the defendants on the 2d January, 1809, at Workington Bank, that is, at Penrith, in the county of Cumberland, whereby the defendants then and there promised on demand, to pay to one R. W. or bearer there, that is to say, at Workington Bank aforesaid, five guineas, value received. The declaration afterward averred, that after the making of the note, the defendants became insolvent, and then and from thenceforth until and at the time of exhibiting of the bill aforesaid, ceased and wholly declined and refused to pay at the Workington Bank aforesaid, the sum or sums of money specified in any note or notes issued by them from such bank, to wit, at Penrith aforesaid, &c. Lord Ellenborough, C. J. observed that the mere allegation of insolvency, as an excuse for not presenting the notes for payment at the place, would be impertinent; but in this case, the allegation, the truth of which as reported by the learned Judge, was left to the jury, and found by them, went further, that the defendants had ceased and wholly declined and refused payment of any of their notes at the place; how then can the question arise? the shutting up of the house might be considered as a refusal to pay the notes there; and as it is not disputed that the banking shop was shut up, and that any demand of payment which could have been made there, would have been wholly inaudible, that is substantially a refusal to pay their notes to all the world.

Afterwards upon a writ of error in the Exchequer Chamber,

1st. When pre

sentment is necessary.

If the holder of a bill at the time it becomes due, be dead, it is said that his executor, although he have not proved the will, must present it to the drawee'. If the drawee goes abroad, leaving an agent in England, with power to accept bills, who accepts one for him, the bill when due, must be presented to the agent for payment, if the drawee continue absent. When a bill, transferable only by indorsement, is delivered to a person without being indorsed, he should nevertheless present the bill for payment to the acceptor, and offer an indemnity to him; and if the acceptor then refuse to pay, the bill should be protested for non-payment 3. It has been holden, that if a draft be given, which ought to be, but is not, stamped, it is not necessary to present it for payment; but the insufficiency of the bill in other respects will constitute no excuse for the non presentments.

The neglect to make a proper presentment may, however, as far as respects the drawer's liability, be excused by the drawee's not having had effects of the drawer in his hands from the time of drawing the bill to the time when it became due'; and where a bill

the judgment of the K. B. was over-ruled, and Macdonald, C. B. said, "this is extremely simple, it depends entirely on the force and effect of an allegation in the declaration, which, it is said, dispenses with the necessity of presenting the notes in question. It is clear that a demand at the place is necessary, unless it is dispensed with. The question then is, whether this allegation that the plaintiffs in error ceased and wholly declined and refused to pay at the Workington bank, any notes issued by them from such bank, carries the matter further than a mere allegation of insolvency; and as it is not alledged that this declaration, they would pay none of their notes, was made to the plaintiff below, it is merely this, that they generally declared, they neither could or would pay any of their notes; this allegation does not appear to the judges to be sufficient to enable the plaintiff below to maintain his action, therefore judgment must be for the plaintiffs in error.

2

Poth. pl. 146.-Molloy, b. 2. c. 10. pl. 24.-Mar. 134, 135.
Phillips v. Astling, 2 Taunt. 206.

3 Supra, note 1.

* Ante, 75.-Wilson v. Vysar, 4 Taunt. 288.-Ruff v. Webb, 1 Esp. Rep. 129. acc.-sed vide Swears v. Wells, id. 317, and Chamberlyn v. Delarive, 2 Wils. 353. The reason is that the unstamped instrument cannot be given in evidence.

5 Chamberlyn v. Delarive, 2 Wils. 353. see quere.

6

Ante, 258.

sentment is neces

drawn on Leghorn was not presented in due time, 1st. When preowing to the political state of the country at that sary. time, which rendered it impossible to present it, it was holden, that it being afterwards presented for payment as soon as practicable, and refused, the holder might recover, and evidence of this impossibility of presenting the bill at the time of maturity might be given, under the usual averment that the bill was duly presented '.

And if a bill be taken under an extent, before it is due, and the party holding it on behalf of the Crown neglect to present it for payment in due time, the drawer and indorsers will continue liable, because no laches are imputable to the crown2.

So the consequences of the neglect to present may be waived by a payment of part, or a promise to pay after full notice of the default, and indeed by the same circumstances, which will do away the effect of a neglect to present for acceptance, or to give notice of the refusal ".

But the circumstance of the drawer having notice before the bill is due, that it will probably not be paid, and promising the holder that he will endeavour to provide effects, and see him again, will not excuse the neglect to present the bill for payment to the drawce on the day the bill is due.

'Patience v. Townly, 2 Smith's Rep. 223, 4.-Ante, 212,

2

4

West on Extents, 1st ed. 29, 30.

3 Vaughan v. Fuller, Stra. 1246.--Ante, 302.

Ante, 302 to 309.--Hopes v. Alder, 6 East. 16.

5 Ante, 301 to 309.

6 Prideaux v. Collier, 2 Starkie, 57. This was an action by the plaintiff as the indorsee of a bill of exchange, dated March 20th, 1816, drawn by the defendant upon Wood and Co. payable to his own order, and indorsed by him to the plaintiff. Upon the 22d of May, the day before the bill became due, application was made by the plaintiff to Wood and Co. and the answer was, that Collier had no effects in their hands; but the clerk of Wood and Co. remarked that the bill would not be due until the next day, and that it was probable that Collier would be in before that time, and provide effects. On the next day, the 23d, when the bill became due, the defendant said to the plaintiff, that he understood that he the plaintiff was the holder of the bill, which he hoped would be paid; that he

1st. When presentment is neces

sury.

We have next to consider in what cases the acceptor of a bill, or maker of a note, may resist an action on account of a neglect of the holder to present the instrument for payment. It is a general rule of law, that where there is a precedent debt or duty, the creditor need not allege or prove any demand of payment before the action brought, it being the duty of the debtor to find out his creditor, and tender him the money, and, as it is technically said, the bringing of the action is a sufficient request'.

It might not perhaps be unreasonable, if the law required presentment to the acceptor of a bill, or maker of a note, before an action be commenced against him, because otherwise he might, on account of the negotiable quality of the instrument, and the consequent difficulty to find out the holder of it on the day of payment, in order to make a tender to him, be subjected to an action without any default whatever: and the engagement of the acceptor of a bill, or maker of a note, is to pay the money when due to the holder, who shall for that purpose make present

ment".

It is, however, a settled rule of law, that when no particular place is named, in a bill or note, for payment, the acceptor or maker of the note cannot resist an action on account of neglect to present the instrument at the precise time when due, or of an indulgence to any of the other parties'. And on the

would see what he could do, and would endeavour to provide effects, and would see him again. The bill was not presented to the drawees on the 23d, but was presented on the 24th. Lord Ellenborough held, that this did not supersede the necessity of a presentment on the day. See Phipion v. Kneller, 4 Campb. 285, ante, 297.

Birks v. Trippet, 1 Saund. 33.-Carter v. Ring, 3 Campb. 459.Capp v. Lancaster, Cro. Eliz. 548.-Co. Litt. 210 b. note 1.-Com. Dig. Condition, G. 9.

2

See the argument in Wegersloff v. Keene, 1 Stra. 222.-Callaghan v. Aylett, 2 Campb. 549.-Lancashire v. Killingworth, Ld. Raym. 687. Salk. 623.-12 Mod. 530.-Com. Dig. Condition, G. 9.

3 Dingwall v. Dunster, Dougl. 247.-Anderson v. Cleland, 1 Esp. N. P. 47.

Anderson v. Cleland, Sittings Easter, 1779. MS. 1 Esp. N. P. 47. The indorsee of a bill of exchange brought an action against the

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