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with him as principal debtor, there is no one whose liability he could affect by notice of dishonor. Indeed, much of the subject may be summed up by the statement that if the indorser cannot possibly be prejudiced by the omission, the omission is to be excused.' It is enough, however, to require the steps that the indorser may suffer prejudice from the omission of them; the indorser is not required to show that he has suffered prejudice by the omission; it is for the plaintiff to show that the indorser could not possibly have suffered.
The fact that the note, bill, or cheque has been lost does not dispense with these steps, for a copy may be used in making Loss of presentment, with an offer of indemnity against instrument. liability upon the lost instrument."
§ 3. EXCUSE OF PRESENTMENT. Some excuses go no further than to justify the omission of presentment and demand, or, perhaps, but one of these two Limited waiver steps, for it is to be remembered that presentment cuse : present- and demand are separate steps, severally required ment: demand. in the absence of legal excuse; and, further, excuses are looked upon with scrutiny, and not allowed unless plainly made out.
First, in regard to excuses for failing to make presentment as distinguished from demand. Such a case arises where the maker or acceptor, understanding or professing to understand the errand of the holder, declines to see the paper, or expressly or virtually tells the holder that he need not produce it. A case
· Smith v. Miller, 52 N. Y. 545 ; Welch v. Taylor Manuf. Co., 82 III. 579, drawer.
Foster v. Parker, 2 C. P. D. 18; also cases in note 1. Many of the cases relate to the omission of notice only, but the principle is sufficient to cover all the steps.
8 Lane v. Bank of West Tennessee, 9 Heisk. 419. Compare Fales v. Russell, 16 Pick. 315; Tuttle v. Standish, 4 Allen, 481 ; Hopkins v. Adams, 20 Vt. 407; Thayer v. King, 15 Ohio, 242. These are cases of actions sustained against the maker of lost notes, of course upon copies ; it follows that presentment may be made upon a copy.
of the kind would arise where the maker or acceptor, before the paper is produced, should absolutely repudiate all liability upon it, and refuse to pay it; that would be a waiver of presentment, certainly where the holder called for payment at the proper place, as, for example, at the counting-house of the maker of a note; ' perhaps, it would be a waiver wherever demand was made.” Mere refusal of payment, however, is no waiver of omitting presentment. For example : The defendant is indorser and the plaintiff holder of a promissory note. At maturity the plaintiff, not having the note with him, calls upon the maker, and demands payment, which is refused. The defendant is discharged, the refusal being no waiver of the requirement of presentment.*
Excuse of demand will doubtless excuse presentment; but, perhaps, excuse of presentment, in the special sense of that term which distinguishes it from demand, would not make demand unnecessary.
Waiver of presentment, made by an indorser after maturity, must have been made with knowledge of the omission, in order to be valid."
It will not be needful to separate the two steps further, and accordingly presentment may be taken as including demand."
Removal of the maker or acceptor from the State, after the making or acceptance, excuses the holder from any duty to follow him, such as would rest upon the holder in Effect of case of removal to some other place within the removal. State in which the paper is payable. The removal would not, according to good authority, though there is also contrary
i Waring v. Betts, 90 Va. 46.
6 The Statute appears to speak of presentment as including demand ; at any rate it does not separate the two acts, in speaking of excuses. “Presentment for payment may [why inay?] be dispensed with (1) where after ... reasonable diligence presentment as required by this list cannot be made ; (2) where the drawee is a fictitious person ; (3) by waiver of presentment, express or implied.' N. I. L. & 89. See § 88 as to delay.
o Wheeler v. Field, 6 Met. 290.
authority,' excuse the holder from making presentment at the last place of business or residence of the maker or acceptor; but presentment there would clearly be sufficient. For example: The defendant is indorser and the plaintiff holder of a promissory note payable generally and made at Troy, New York, where the maker resided at the time of making the note. Afterwards, before the maturity of the note, the maker removes to Florida, where he resides when the note matures. The plaintiff makes presentment at the maker's last abode in Troy; and not receiving payment, gives notice of dishonor presently. No presentment in Florida is made. The liability of the defendant is duly fixed.”
Concerning the effect of absconding there is some conflict of authority. The more general doctrine is that such act excuses Effect of
the holder from all duty to make presentment: absconding
For example: The defendant is indorser and the plaintiff holder of a promissory note, the maker of which, before its maturity, absconds to parts unknown; whereupon at maturity, the plaintiff, without taking other steps, gives notice of dishonor to the defendant. The defendant's liability is duly fixed.:
The same authorities, however, which, in case of removal beyond the State, require presentment at the last abode or place of Removal be
business, recalling the doctrine that the holder is yond the State. bound to exercise due diligence in endeavoring to obtain payment from the maker or acceptor, refuse to accept that view of the case. These authorities require the plaintiff to show that, notwithstanding the absconding, he has exercised some diligence in order to obtain payment of the primary debtor; some inquiry should be made.?
i Foster v. Julien, 24 N. Y. 28 ; Gist v. Lybrand, 3 Ohio, 308. See Reid 1. Morrison, 2 Watts & S. 401.
2 See Taylor v. Snyder, 3 Denio, 145. But if, as was the actual case in Taylor v. Snyder, the maker lived at the time of making the note in another State or country from that in which it was made, presentment there would be necessary. See ante, p. 112.
8 Lehman v. Jones, 1 Watts & S. 126; Reid v. Morrison, 2 Watts & S. 401; Taylor v. Snyder, supra ; Spies v. Gilmore, 1 Comst. 321 ; Wolfe v. Jewett, 10 La. 383. The same rule prevails in the case of bills of exchange Lehman v. Jones, supra.
The insolvency of the maker or acceptor, though known to the indorser at the time of his indorsement, is not an excuse for failing to make presentment. For example: The Effect of insoldefendant, payee of an overdue promissory note, vency. indorses it knowing that the maker is insolvent, the plaintiff discounting it for him at its face value. Presentment is not made within reasonable time. The defendant is discharged from liability.
Waiving notice of dishonor does not excuse the holder from making presentment. For example: The defendant, an indorser of a promissory note, writes before or after his sig- Waiver of nature the words, Waiving notice. The plaintiff, notice. holder of a note at maturity, omits to make presentment of the note for payment as well as to give notice of dishonor. The defendant is discharged.8
In some States, contrary to the rule in others, the fact that the maker or acceptor has deceased at the time of the maturity of the note or bill, and that the paper matures be- Death of maker fore the end of the period in which his personal or acceptor. representative is exempt from liability to suit, excuses presentment altogether. For example: The defendant is indorser and the plaintiff holder of a promissory note due October 4. The maker dies in September preceding, administration is duly granted, and notice thereof is given the same month. No presentment is made at the maturity of the note or at any other time to the administrator, but notice of non-payment is given to the defendant in due season. The defendant's liability is deemed fixed, presentment not being considered necessary.
1 Pierce v. Cate, 12 Cush. 195, overruling some earlier decisions and dicta. 2 Bassenhorst v. Wilby, 45 Ohio St. 333.
s Berkshire Bank v. Jones, 6 Mass. 524; Cases, 212. See also Voorhies v. Attee, 29 Iowa, 49; Buchanan v. Marshall, 22 Vt. 561; Lane v. Steward, 20 Maine, 98; Backus v. Shipherd, 11 Wend. 629. But see Matthey v. Gally, 4 Cal. 62.
4 Hale v. Burr, 12 Mass. 86. See Oriental Bank v. Blake, 22 Pick. 206 ; 1 Oriental Bank v. Blake, supra. 3 N. I. L. $ 154.
If, however, the paper should become due after the period of exemption has passed, presentment should be made.
The Statute thus deals with excuse touching presentment for acceptance: Where the holder of a bill payable elsewhere than at The Statute as
the drawee's place of business or residence has not
time, by reasonable diligence, to present the bill for acceptance before presenting it for payment on the day it falls due, delay in presenting the bill for acceptance before presenting it for payment is excused, and does not discharge the drawer and indorsers.?
Presentment for acceptance is excused, and the bill may be treated as dishonored by non-acceptance (1) where the drawee is dead, or has absconded, or is a fictitious person, or has not capacity to contract by bill; (2) where, after reasonable diligence, presentment for acceptance cannot be made; (3) where though presentment has been irregular, acceptance has been refused on some other ground.3
§ 4. EXCUSE OF PROTEST. As we have seen, the term 'protest,' as used by the law merchant, applies only to foreign bills of exchange, though by pracProper and ex
tice, to which the sanction of statute has widely tended mean- been given, it has come to be, or rather it has long ing of protest : foreign bills : been, applied also to inland bills, promissory notes, other paper.
and cheques. But the law merchant has not lost its supremacy in the matter; the protest of a foreign bill having, as we have seen, a significance not attaching to the protest of other paper. Protest in the case of a foreign bill is one definite and altogether unique act; in the case of other paper, while -it naturally points to the same unique act, it has come to be used in a loose and vague sense, making it include other or even all the steps for fixing liability.
The consequence is that excuse of protest has ordinarily a Landry v. Stansberry, 10 Lt. An. 484. But see Gower v. Moore, 25 Maine, 16, and qu. the soundness of the rule in Hale v. Burr. It would seem to be merely a case of temporary impediment rather than permanent excuse.
3 Id. § 155.