been made on July 3,1 unless that day also was a non-secular day, in which case it should have been made on July 2.1 If the instrument (entitled to grace) is on its face payable in instalments, each instalment is entitled to grace; there can be no breach of the contract, and hence no proper presentment, touching an instalment, except on the last day of grace, treating the instalment in question as if it were a separate and distinct undertaking. For example: The defendant is indorser of a promissory note dated Nov. 19, 1888, and payable by equal instalments on the 19th of November in each succeeding year for seven years. The instalment due in 1892 is the subject of the present suit; presentment for payment of which was made and refused November 22 of that year, and was followed at once by notice of dishonor. The presentment is good.3 A like rule would apply if it were provided, as often is the case, that if any instalment were not paid when due, the whole sum should be immediately due. The holder would have his election in such a case to sue for the instalment alone or for the whole sum, each claim sued upon, it seems, now requiring presentment, so far as indorsers are concerned, on the same day, the last day of grace. The Statute abolishes grace on negotiable instruments altogether; every negotiable instrument is by its language 'payable at the time fixed therein, without grace.' If maturity would fall upon Sunday or a holiday, the instrument is payable on the next succeeding business day. And a special provision is made by the New York Statute in regard to instruments falling due on Saturday, to wit, that they are to be presented for payment on the next succeeding business day, except that if they are payable on demand the holder may, at his election, present them for payment before noon on Saturday when that entire day is not a holiday. In other respects the rule in regard to common law contracts appears to govern. 5 1 Capital Bank v. American Bank, 51 Neb. 707. 2 It is of course only when the last day of grace would fall on a holiday that grace is affected. Bartlett v. Leathers, 84 Maine, 241. Oridge v. Sherborne, 11 Mees. & W. 374. 4 N. I. L. § 92. Id. § 93: 'Where the instrument is payable at a fixed period after date, The rule in regard to time of presentment supposes, however, that there is no legal obstacle to presentment at maturity. Should there be such obstacle, the rule yields, and Legal obstacle: inevitable acci- the law in most cases, if not in all,1 suspends the requirement of performance of the duty until the removal of the obstacle; then, or within reasonable time thereafter, presentment must be made." dent. 2 What is a 'legal obstacle,' within the meaning of this rule? It must be something not attributable to the holder, even in the way of mistake. Thus the holder could not, by way of justifying presentment after the day of maturity, show that he had made a miscalculation of the time when the paper became due, or that he had confused two instruments maturing at different times, and had taken the wrong one for the one in suit, or that in sending the paper forward to the place of payment he had made a mistake in the address which caused the delay. Mistake by the holder would be fatal. On the other hand, inevitable accident,' to use a common term, would be a legal obstacle. Accident, as thus brought in contrast with mistake, is some unexpected event happening without the agency direct or indirect of the person to whom it happens. The mistake of another may therefore be an 'accident' to the holder; so it will be if the mistake was in no proper sense due to the holder, it is then inevitable accident,' and presentment may be made after the mistake has been corrected. For example: The defendants are indorsers of a bill of exchange drawn in Norwich, Connecticut, on A in Philadelphia, Pennsylvania, and accepted payable at a certain bank after sight, or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run and by including the date of payment.' 1 The effect of the death of the maker or acceptor is disputed. See infra, p 120. 2 Lindo v. Unsworth, 2 Camp. 602; 12 Rev. Rep. 750; Jewish festival day, requiring Jews to abstain from secular business, held sufficient reason for delay, by Lord Ellenborough. 8 N. I. L. § 120. • Promptness in correcting a mistake, so as to make the result the same as if no mistake had been made, may, it seems, be shown. Fielding v. Corry, 1898, 1 Q. B. 268, as to time of notice of dishonor. there. Shortly before the maturity of the bill the holder sends it to a banking-house in New York City for collection. Between New York and Philadelphia there are two mails daily, one leaving New York at 9 A. M., the other at 4.30 P. M., each due at Philadelphia five hours after starting. On the morning before the day of maturity the cashier of the collecting bank encloses the bill, with others, in a letter addressed to the bank at which it is payable, and mails the letter in season for the afternoon mail of that day. The letter is duly put into the mailbags, which leave New York at the time just mentioned; but by mistake of employees in the New York post-office the mailbags containing letters for Philadelphia are directed to Washington. They are carried on accordingly to Washington, where the mistake is discovered; and the bags are now sent back to Philadelphia, reaching that city on the day after the maturity of the bill. That day is Sunday. On Monday morning the letter containing the bill in question is delivered to the bank to which it is addressed, and at which it is payable, and payment is presently refused. Protest and notice follow directly. The presentment is good, inevitable accident having prevented the making of it sooner.1 The existence at maturity of war between the countries or States in which the holder and the payor respectively reside would be another legal obstacle; and withholding presentment or attempts to make presentment until the end of the war would not affect the liability of indorsers, even though the period of limitation (for natural cases) might have expired. But within a reasonable time after the end of the war presentment should be made, on pain of discharging indorsers. What time would be reasonable would in a case of doubt be for the jury; on facts leaving no ground for doubt in the matter, the court would rule. And the courts would probably be found endeavoring to narrow the region of doubt wherever they could. A similar case would be the existence of an epidemic at the place of payment, resulting in quarantine; and it would not matter whether the quarantine was general, embracing a whole 1 Windham Bank v. Norton, 22 Conn. 213; Cases, 132; N. I. L. § 120. * Farmers' Bank v. Gunnell, 26 Gratt. 131. district, or a whole city, or limited only to some quarter of the city in which the paper was payable, or though it was only of the house where it was payable. The fact that the maker or acceptor was dead when the paper matured might of course create a legal obstacle to presentment. In the first place, there may as yet be no executor or administrator, of whom alone payment could be required. In such a state of things, one of two things must be true; either the indorser's contract must hold good meantime, awaiting the qualification of a personal representative, or presentment must be excused, and the indorser's liability fixed, by taking the other steps. In some States the latter alternative appears to be accepted;1 probably the former would be more generally accepted as the better doctrine.2 In In the next place, though there may be a qualified executor or administrator at the maturity of the paper, still there may be a statutory period of exemption of such representation from suits (that is, from duty to pay demands against the estate), which may not yet have expired. such a case, as in the one just stated, either the indorser's contract must hold good until the period expires, when presentment must be made, or presentment must be excused, and the other steps taken. The latter alternative is adopted in some States, the former in others. For example: The defendant is indorser of a promissory note, the maker of which is dead when it matures. An administrator has been appointed and has qualified. He is exempted by law from suit for one year from the time of qualification. The note matures a month after his qualification. No presentment by the law of Massachusetts and of other States is necessary; presentment by the law of Maine and probably of other States is necessary.1 8 1 Hale v. Burr, 12 Mass. 86; Oriental Bank v. Blake, 22 Pick. 206; Landry v. Stansberry, 10 La. 484. 2 Gower v. Moore, 25 Maine, 16. 3 Hale v. Burr, and other cases in note 1, supra. Query if notice is not necessary under this rule? See the statement of facts in Hale v. Burr; and see Oriental Bank v. Blake, 32 Pick. 206, holding that notice to an administrator of an indorser is necessary. 4 Gower v. Moore, 25 Maine, 16. But it is not enough that presentment is made on the day of maturity or other proper day; it must be made at a reasonable time of that day, though it is possible that the Time of day. plaintiff makes out his case presumptively in this pre In regard to time of day a distinction like that heretofore noticed between paper payable at bank and paper not payable at bank prevails. If the paper is payable at bank, or at any mercantile house having fixed hours of business, presentment should be made within such hours; to make it before or afterwards would be of no avail in the steps to fix an indorser's liability, unless indeed the bank or house of business had some one at hand to answer calls of the kind. It is common in many States, but not in all, for banks to have some one of its force remain for a time after the close of banking hours for such purpose; presentment accordingly would be good.2 The case is different if the maker, drawer, or acceptor has no place of business with early hours of closing; but the extremes of the time prescribed by law for presentment in such cases are hard to fix. It is common to say of cases of the kind that presentment may be made at any time of day between morning and night. But when does morning' begin and when does 'night' end within the meaning of the statement? It would be unreasonable to say that presentment might be made at any time between the beginning of day and midnight, and the law does not say so. Payment should be called for only when, so far as time of day is concerned, it can conveniently be made. Hence it should not be called for during the hours of rest; that is, the hours ordinarily given to sleep, as, for instance, near midnight. For example: The defendant is indorser of a promissory note payable at no place designated. In the night of the day of maturity, between eleven and twelve o'clock, the holder calls up the maker, who has gone to bed, and presents the note for payment, which is refused, and notice of dishonor given. The presentment is not good. 1 See Dana v. Sawyer, 22 Maine, 244. 3 Id. 2 Id. |