Page images
PDF
EPUB

The fact that the maker or acceptor may have retired te rest will not make the presentment improper, for he may have retired in the daytime, or in the edge of the evening, because of illness, fatigue, or anything else. The only question on this point is whether the presentment was made at a reasonable time of day; that question, in cases in which there is serious ground for doubt, will and should ordinarily be left to the jury. Still, the courts are inclined to push back the borders of doubt as far as they can, and so bring the case within the domain of certainty. For example: The defendant is indorser of a promissory note, payable at no designated place, and due in August. The maker lives in the country, ten miles from Boston. The note is received at maturity by a notary public, after the close of banking hours, from a bank in Boston which holds it for collection, the bank not knowing where the maker lives. After considerable inquiry the maker's place of residence is ascertained, and the notary, informed of the place, goes as soon as he can to the house, arriving there about nine o'clock in the evening. The lights of the house are out, and the inmates have gone to bed for the night. The notary calls the maker up, and presents the note for payment, and payment is refused. The presentment is good; taking into consideration the distance of the maker from the holder, the inquiry made to ascertain the maker's place of residence, and the season of the year, the time of presenting the note was reasonable. Again: Presentment is made between eight and nine o'clock at the house of a grocer. The house is shut, and no one is there to give answer. The presentment may be good.?

1 Farnsworth v. Allen, 4 Gray, 453. “The question whether a presentment is within reasonable time cannot be made to depend on the private and peculiar habits of the maker of a note, not known to the holder; but it must be determined by a consideration of the circumstances which, in ordinary cases, would render it reasonable or otherwise.' Id., Bigelow, J.

2 See Triggs v. Newnham, 10 Moore, 249 ; s. c. 1 Car. & P. 631 ; Wilkins v. Jadis, 2 Barn. & Ad. 188; Morgan v. Davison, 1 Stark. 114; Barclay v. Bailey, 2 Campb. 527. The rulings on presentment appear to have been positive in these cases; but it would be unsafe to say in general that present. ment in such a case would be good. There might be early closing' in the trade, and no good reason shown for not making presentment at the place of business during business hours.

Similar narrowing of the borders of doubt has been made in regard to presentment in the early morning. Thus presentment upon a maker at his place of residence in a city at eight o'clock in the morning has been declared too early;' while presentment so made in the country, at a farmer's house, would ordinarily, it seems, be reasonable.

However, rulings upon such questions are not of the same value as general rules of law, because such rulings depend so much upon the particular facts. Facts of small import in themselves often become important in cases of the kind, important enough to set aside the application of the ruling in question. The ruling is particular, not general; the examples above given cannot be taken to apply to any but very similar cases. Their chief value probably lies in their showing a disposition of the courts to extend the domain of law, and hence of certainty, as far as possible.

$ 4. PRESENTMENT, BY WHOM. Presentment should be made by the holder, or by some ono authorized to receive payment on his behalf. According to the better rule, no one else can make a presentment Presentment such

as, if refused, can be treated as a step towards by one, not fixing an indorser's liability. Confusion has arisen payment. from the fact that in certain cases a stranger in possession of the paper may make presentment for the purpose of receiving payment; which is only saying that payment made to such person may operate as a discharge and satisfaction of liability. That will be the case whenever the payment is made in good faith, without notice that the holder is not owner of the paper, and the paper surrendered to the party making payment. The instrument is now extinguished, and with it of course the liability of all parties to it.

But to say that payment may be made to a person not entitled to receive payment is not to say that presentment by such person is good for the purpose of fixing the liability of an indorser For that purpose presentment must be made by one who, in making it, is acting in virtue of the contract of the defendant, and who further, in the case of a promissory note or an accepted bill of exchange, can compel and not merely receive payment. The indorsement (or the drawing of bill or cheque) is an order to pay to the true holder; obviously, then, none but the true holder, or one acting on his behalf, can make a presentment that shall fulfil the terms of the indorser's contract. If presentment be good when made, as sometimes it is, by an indorser, it is good because the indorser is (not indorser, but) the authorized agent of the holder.

1 Lant v. Adams, 17 Maine, 230. * N. I. L. 8 79.

SA negotiable instrument is discharged by payment in due course by or od behalf of the principal debtor.' N. I. L. $ 126.

Upon the death of the holder, presentment should be made by his successor in title, that is, by his executor or adminisDeath of

trator. It should not be made by any legatee, for holder.

such person, though entitled, it may be, to the money when paid, could not require payment; the maker or acceptor could refuse to pay to any one but the legal representative of the late holder.

It matters not through whose hands the paper passes in making presentment, if the act be that of the owner; the inIntermediate termediate persons are only his instruments. For persons.

example: A bill of exchange is sent through the post-office to the acceptor in a letter demanding payment, and is received on the day of maturity. This is a good presentment;2 though it would be otherwise of a mere demand of payment of paper not sent forward or lodged in the bank making demand.

In the case of a dishonored foreign bill of exchange there may be a double presentment; and there may be and often is in the case of an inland bill or of a promissory note. The first pre

1 See Crist v. Crist, 1 Carter (Ind.), 570; Cases, 78. Perhaps he may not be entitled to receive it or any part of it, though it was given to him by will of the owner, for the owner may have been involved in debt, and his estate must first pay the creditors.

· Prideaux v. Criddle, L. R. 4 Q. B. 455; Hare v. Heaty, 10 C. B. N. 8. 66,

sentment is made by the holder of the paper or by his agent, in the ordinary way; then the paper must, if a for

Foreign and eign bill, may by statute,' if an inland bill or a inland bills :

notary. note, be put into the hands of a notary public (or of some other public officer or respectable, disinterested person, by the unwritten law, if no notary can be found to serve), and presentment made by him. But the action of the notary so far will be just the same, as regards time and place, as if he were holder.

In this country it is generally laid down that the notary must act in person, in the absence of statute; he cannot make presentment by a clerk or deputy.: Indeed, it is held that the defect in making presentment by a clerk would not be cured by the notary himself making the protest. Perhaps, however, custom in large cities may be deemed to sanction the act of a deputy; that is the case in England. It is not improbable that the rule requiring personal action by the notary was due to a mere slip by an English judge. In the case of inland bills and promissory notes, the act of a notary is not required at all, thaugh it is generally permitted by statute.

In some States statute authorizes presentment of a foreign bill by a notary's deputy, and in some States by a justice of the peace. And where, in any case, no notary resides or will act in the place of payment, any public officer may act, or if no such person is at hand or will serve, then any respectable, disiuter

2

IN. I. L. S$ 125, 159, and by earlier statute generally.

By N. I. L. $ 161, 'protest may be made by (1) a notary public, or (2) by any respectable resident of the place where the bill is dishonored, in the presence of two or more credible witnesses.' In giving no preference to the notary's act, this changes the unwritten law.

3 Ocean Bank v. Williams, 102 Mass. 141 ; Donegan v. Wood, 49 Ala. 242; Hunt o. Maybee, 3 Seld. 266 ; Carter v. Union Bank, 7 Humph. 548 ; Smith v. Gibbs, 2 Smedes & M. 479. But see Nelson v. Fotterall, 7 Leigh, 179.

4 Smith v. Gibbs, supra.

6 Buller, J., in Leftley v. Mills, 4 T. R. 170. See 1 Parsons, Notes and Bills, 641, pote.

6 Unless the employment of a notary is permitted by statute, notarial fees cannot be collected in such cases. Burke v.

2 How. 66; Union Bank ». Hyde, 9 Wheat. 572 ; City Bank v. Cutter, 3 Pick. 414.

ested merchant or other private citizen.Witnesses should be present in such a case.”

$ 5. PRESENTMENT, To Whom.

Presentment may of course be made either to the maker, drawee, or acceptor or to his lawful agent; or according to the Statute, if the party primarily liable is "absent or inaccessible to any person found at the place where the presentment is made.':

In case of such person's death presentment should be made, if it be required (concerning which see the remarks in the precedDeath of maker ing section), to his executor or administrator, if or acceptor.

one has qualified and his place of business or of residence can by reasonable diligence be found. If no one has qualified as executor or adminstrator, or if the executor or administrator cannot be found, demand perhaps should be made upon the kindred who occupy the residence of the maker or acceptor or have possession of his property; but such a state of things would more likely be held to dispense with Deed of presentment, at least for the time.

The mere fact that the maker or acceptor has become bankrupt will not affect the rule in regard to presentment, for a man does not cease to own or control his property simply because he is not able to pay his debts. Much less does he cease to have friends who may help him, especially where he has been guiltless in his misfortune. But if an assignee of his estate has been appointed, by the voluntary act of the maker or acceptor, or by the law, it is not clear that presentment should not be made upon the assignee, for the estate may have proved solvent; though it appears to be held that presentment must still be made upon the bankrupt.5

1 See Burke v. McKay, 2 How. 66.

2 N. I. L. § 161, supra, p. 125 ; 1 Parsons, Notes and Bills, 633 ; Chitty, Bills, 333, 9th Eng. ed. ; Bayley, Bills, c. 7, § 2.

* N. I. L. $ 79, 4.
* N. I. L. $ 83; Gower v. Moore, 25 Maine, 16.

• See Nicholson v. Gouthit, 2 H. Black. 609; 3 Rev. Rep. 527; Barton u. Baker, 1 Serg. & R. 334 (notice of dishonor).

« PreviousContinue »