Indeed, it is the duty of the holder to follow the maker or acceptor upon his removal, if he has not removed beyond the State; or rather the holder should exercise reasonable diligence to find him. If by such diligence he can find the maker or acceptor, he must exercise the diligence. If the maker or acceptor has removed beyond the State, since the paper was made or accepted, the holder performs his duty in the matter of place of presentment, by calling for payment at the party's last place of business or of residence according to the particular case. 2 Whether that is necessary is disputed; by the better view it is. In some States, indeed, it is held that diligence must be exercised to obtain payment even where the maker or acceptor has absconded.1 But of such matters under the head of excuses. Of course, if the maker or acceptor lived in another State when the paper was made or accepted, the paper must be sent forward for presentment there."

Place of date.

8

The place of date of the paper is prima facie evidence of the place for presentment, if no other is indicated upon it; but it is only prima facie evidence. The date, whether of place or time, is no necessary part of the contract, and the actual fact may be shown. Even where paper is payable at the office' of the maker or acceptor, the place of date does not necessarily fix the place for presentment; whereever the party's 'office' is, there presentment should be made."

1 Exercising diligence will be enough, though it fail of effect. Bank of Utica v. Bender, 21 Wend. 643; Cases, 191.

2 Taylor v. Snyder, 3 Denio, 145.

Wheeler v. Field, 6 Met. 290.

See N. I. L. § 80, 4.

Contra, Gist v. Lybrand, 3 Ohio, 308; Foster v. Julien, 24 N. Y. 28, Mason, J., dis.

Pierce v. Cate, 12 Cush. 190. But see contra, Lehman v. Jones, 1 Watts

& S. 126; Duncan v. McCullough, 4 Serg. & R. 480.

Taylor v. Snyder, supra.

Childs v. Laflin, 55 Ill. 156; Blodgett v. Durgin, 32 Vt. 361; Taylor v. Snyder, 3 Denio, 145.

7 Childs v. Laflin, supra.

§ 3. TIME OF PRESENTMENT.

Coming to the question of the time of presentment, we encounter a distinction between presentment for acceptance and presentment for payment, which must first be dis- Distinction:

posed of.

presentment Presentment for acceptance is necessary, as has for acceptance. heretofore been observed, only in the case of bills payable at sight, and not then if by law the instrument is not entitled to grace. But bills payable at a time stated after date may be presented for acceptance, as the drawer is considered to contract that the holder shall have the security, if he will, of acceptance.1

With regard to bills payable at a stated time after date, the holder may make presentment, if at all, at any time before maturity of the bill. It is doubtful whether there Bills payable could be a presentment for acceptance, in any case, after date. after maturity; presentment after maturity would naturally be for payment. But that is not material, for all indorsers would be discharged by failure to present the instrument for payment at maturity, except such as had waived the requirement, and such as may have indorsed after maturity.

Bills payable after sight:

circulation.

With regard to bills payable at or at a stated time after sight, the case is different. The law merchant requires presentment of such paper within a reasonable time; but that rule is interpreted to permit the circulation of such paper indefinitely before presentment, so that the Statute of Limitations does not run out. That is to say, the contract of the drawer and indorsers of such a bill is that the holder may present the bill at any time within the period of the Statute of Limitations, provided that the paper is kept in circulation meantime; when finally presentment for acceptance is made, the taking of the other steps required in case of dishonor will accordingly fix liability. For example: A sight bill is sent from Chicago to a distant territory on the day of its date. After some detention in the mails it reached its destina

1 N. I. L. § 68.

tion, when the holder puts it into circulation at the first opportunity, and it is then kept in circulation as well as the thinly settled condition of the territory permitted. Without unnecessary delay it is presented to the drawee thirty-five days after its date. The presentment is good. Again: The defendant in London indorses to the plaintiff a bill of exchange drawn in London on A at Calcutta, payable to order sixty days after sight. The bill is dated March 5. On April 30 following the bill is indorsed by the plaintiff in England to A of Calcutta ; on May 22 next the bill is sent to India, and received there early in October; shortly afterwards it is presented for acceptance, and acceptance is refused; due protest and due notice of dishonor follow. It is for the jury to say whether the bill was presented to the drawee in reasonable time; the fact that the paper was kept out in circulation for so long time not being in itself unreasonable.2

The bill should, however, be kept in circulation, as far as circumstances reasonably permit, or it should be presented for acceptance; it should not be locked up. To lock it up, which means to hold it when it might reasonably be passed on in circulation or sent forward for presentment, would discharge the drawer and indorsers. What is a reasonable holding, and hence not a locking-up, must depend upon circumstances, as the examples above given show. In cases lying on the border, the question of reasonableness must ordinarily be left to the jury; in clear cases the court will rule on the facts. The court would rule that to keep a bill an entire day could not be unreasonable; it has been ruled that to hold an inland bill payable after sight in London until the fourth day after receiving it, within twenty miles of London, is not unreasonable.*

The rule, indeed, is not a hard and fast one. It may be entirely changed by custom; if there be a clear and determinate usage of trade at the place of payment, which regulates the time

1 Montelius v. Charles, 76 Ill. 303.

2 Muilman v. D'Eguino, 2 H. Black. 565.

Id.; Goupy v. Harden, 7 Taunt. 159; Mellish v. Rawdon, 9 Bing. 416; Middleton Bank v. Morris, 28 Barb. 616.

Fry v. Hill, 7 Taunt. 397. See Harker v. Anderson, 21 Wend. 372

of presentment, that usage is considered as entering into the contract of the drawer and indorsers, and presentment must be made accordingly.1

It has been said that to indorse paper after maturity is equivalent to drawing a bill at sight, so far as time is concerned. But that is clearly a mistake. It cannot be necessary Paper indorsed to present such paper for acceptance, as would be after maturity. necessary by the unwritten law merchant of sight bills; the paper too might be a promissory note or a cheque. The true view of the case is that indorsement after maturity amounts to an order to pay on demand.

Unwritten law

as to grace: demand paper.

Next of presentment for payment, in the same matter of time; and first, of grace according to the unwritten law merchant. The cardinal rule in ordinary cases is that presentment for payment must be made at maturity, — that is, on the day when by law payment is due. If the paper is payable on demand, and by the Statute,' if it is payable at sight, the paper is not entitled to grace; it is due presently, and presentment may be made on the day of delivery, or on any other day, excepting non-secular days. In other words, the paper is at its maturity all the time. Its maturity is passed by the law merchant upon the expiration, after issuance, of a reasonable time, a matter regulated by statute in some States, at least in regard to promissory notes. The rule applies to such instruments, as well as to others, that presentment after maturity is too late to fix the liability

5

1 Story, Bills, § 231; Mellish v. Rawdon, 9 Bing. 416.

2 Light v. Kingsbury, 50 Mo. 331; Tyler v. Young, 30 Penn. St. 144. See Bassenhorst v. Wilby, 45 Ohio St. 333, 337.

8 Pryor v. Bowman, 38 Iowa, 92; Leavitt v. Putnam, 1 Sandf. 199; Patterson v. Todd, 18 Penn. St. 426; Swartz v. Redfield, 13 Kans. 550. See Landon v. Bryant, 69 Vt. 203.

4 N. I. L. § 92. The Statute has been repealed in Massachusetts in regard to sight paper, and grace thereon restored. 1899, ch. 130.

N. I. L. § 78. In regard to demand paper payable semi-annually, see of the time for demand Beardsley v. Hawes, 71 Conn. 39. This will often include mortgage notes. Such instruments though payable on demand appear to run for six months before being overdue.

of an indorser; unless the paper is indorsed after maturity, as it may be, when it becomes due again after a reasonable time, and must be presented accordingly to bind those who indorsed after maturity.'

In the uncommon case of paper in which grace is excluded by the terms of the paper, -the paper not being payable on demand, - payment is due, in other words the paper matures, as if it were an instrument of the common law instead of the law merchant. Thus, if the day of payment, reckoned literally, would fall on Sunday or any other non-secular day, it is due on the following day, and presentment for payment should be made on that day, not before, not after. If two non-secular days should come together, the first being the one on which payment otherwise would be due, the paper does not reach maturity until after both those days have passed.

This leaves us with the case of paper entitled (by the unwritten law) to grace. In such cases the paper reaches its Paper entitled maturity three days after the time at which by its to grace: how terms literally taken it would be due; and presentto reckon grace. ment should be made on the last day of grace, not before, not after. If what would be the third day of grace should be Sunday or any other non-secular day, the paper matures on the second day, or on the first day of grace if the day before is also a non-secular day. Here, indeed, is said to be a survival of the original idea of days of grace; these were at first, according to current statement, mere favor extended by the holder, and hence, as they could not then be required, the time cannot now be increased. However lame the reasoning, supposing it to rest on fact, the law is clear and positive; grace is cut off by the law merchant, not increased, by non-secular days at payment time. For example: The defendant is indorser of a promissory note made on the first day of June and payable one month after date. Payment is demanded on the 5th of July and refused, and notice at once given to the defendant. The defendant is not liable; presentment should have

1 Bassenhorst v. Wilby, 45 Ohio St. 333.

2 Capital Bank v. American Bank 51 Neb. 707, 710.