but a delay of six days," of seven days,22 of sixty days" is reasonable. There has been some suggestion that if a demand note draws interest the indorser remains liable until a demand is actually made, because the note must have been understood to be a continuing obligation; " but this rule is denied in toto by some authority.25 Another exception as to a demand exists in some jurisdictions as to demand of payment where the parties are farmers. A demand upon the next occasion when a farmer may be expected to desert the plough, such as court day or muster day, is considered sufficient.26 But other courts incline to think that a farmer is a business man and that the necessity of a journey into the country is not an excuse for non-presentment on the day of maturity. Notes that are due upon a certain day must be demanded upon that day, making allowance for days of grace if the note is entitled thereto.28 A failure to demand. upon the last day of grace,29 or a day later under the usage of banks,30 exonerates the indorser, unless he is an indorser before delivery of the note," or unless he has assented to a postponement, or waived a demand.33 It seems to have been held that a demand need not have been made upon the day of maturity if the maker lives at a distance," but the true rule is that it should be so made. The reason offered is that the holder cannot assume until the close of the day of maturity 27 32 3364. A register in bankruptcy had had the marvelous hardihood to decide that four years was a reasonable time. 21 Lindsey v. McClelland, 18 Wis. 481, certificate of deposit. 22 Seaver v. Lincoln, 21 Pick. 267. 23 Rice v. Wesson, 11 Met. 400, semble. 24 Wethey v. Andrews, 3 Hill, 582; Weeks v. Pryor, 27 Barb. 79; Salmon v. Grosvenor, 66 Barb. 160; Merritt v. Todd, 23 N. Y. 28. See Crim v. Stark weather, 88 N. Y. 339; Sice v. Cunningham, 1 Cow. 397. 25 Verder v. Verder, 63 Vt. 38. 26 Brown v. Johnston, 12 N. C. 293. 27 Kiddell v. Ford, 2 Treadw. Const. 678. 28 See notes 5, 6 and 8, supra. 29 The demand may be at any time on that day at a proper hour. Estes v. Tower, 102 Mass. 65; Gordon v. Parmlee, 15 Gray, 413. 30 See § 261, post. 31 See §§ 236 and 240, ante. 32 Lockwood v. Crawford, 18 Conn. 361. 33 See § 293 et seq., post. 34 Freeman v. Boynton, 7 Mass. 483; Haddock v. Murray, 1 N. H. 140. 36 37 that the maker does not intend to pay. But if for any sufficient reason a demand cannot be made at maturity, a demand must be made as soon thereafter as practicable.35 The effect of war or epidemic in exercising a delay will be noticed later. A delay in the postoffice is not to be imputed to the holder, nor is a delay rendered necessary through a loss of the note.38 But the inability to cross a river," or the occurrence of a hard rain not rendering roads impassable, or a violent storm rendering travel difficult," is not an excuse for a total failure to present for payment. In such or similar cases the rule is that if the demand is rendered impossible at the time of maturity, a demand should be made as soon thereafter as practicable. The mere absence of the indorser is no excuse for not making the demand, since his presence is not at all necessary.42 § 253. Paper indorsed overdue. Special attention must be given to a note or bill indorsed after its maturity, in which case the paper becomes ordinary demand paper. If the note has not been presented for payment at maturity, the indorser upon it, except in exceptional cases, has been released. But if an indorser before maturity takes up and sells the note, after maturity he is liable to the holder upon his former indorsement as a guarantor. Or if the holder of the note who has extended it indorses to an indorsee without notice of the extension, no demand as to him is necessary; but the indorser after maturity, it has been held, 35 Jex v. Tureaud, 19 La. Ann. 64; Apperson v. Bynum, 5 Cold. 341. 36 See § 268, post. 37 See Simonds v. Black River Ins. Co., Fed. Cas. No. 12,874; Windham Bank v. Norton, 22 Conn. 213; Schofield v. Bayard, 3 Wend. 488; contra, Grant v. Long, 12 La. 402 (cases on other kinds of negotiable paper). Would this rule apply while the paper was being transmitted to an agent in order that the agent might make the demand? It should apply if the reasons of the rule are good. 38 See § 251, ante, note 23, for other paper. 39 Durnford v. Johnson, 2 Mart. (O. S.) 183. 40 Barker v. Parker, 6 Pick. 80. 41 McDonald v. Mosher, 23 Ill. App. 206. 42 Wilson v. Senier, 14 Wis. 380. 1 St. John v. Roberts, 31 N. Y. 441; Coleman v. Dunlap, 18 S. C. 591. 2 Williams v. Probst, 10 Watts, 111; Ridgway v. Day, 13 Pa. 208. 3 may show in defense of his liability as to his immediate indorsee the non-performance by the indorsee of a special agreement made at the time of the indorsement. But generally speaking, an indorser after maturity or dishonor of a note is treated as the indorser of a new note payable upon demand, and the indorser of a bill after maturity is treated as the drawer of a new bill payable upon demand. It makes little difference whether the indorser is treated as the indorser of a new note or the drawer of a new bill payable upon demand. In either case he is entitled to claim a demand for payment within a reasonable time, whether the maker was insolvent or not at the date of the indorsement, and without regard to the indorser's knowledge of the insolvency. Here again the cases vary widely in their application of the term "reasonable time." A delay of twentyfive days, or from April 19th to July 3d in the same year,' or from July 30th to November 21st in the same year," or of ten months, or of twenty-four months," or of one year," or two years, has been considered unreasonable under varying circumstances, while a delay of twenty-three days,13 or Ridgely v. Davidson, 2 Mill Haseldon, 2 Bailey, 457; Winston Const. 33. This may not be shown v. Kelly, 33 Tex. 354. Contra, if as to the remote indorsee. Cox v. negotiated after dishonor no new Jones, 2 Cranch, C. C. 370. demand is necessary. French v. Jarvis, 29 Conn. 347; Hall v. Monohan, 6 Iowa, 216 (Seymour v. Van Slyck, 8 Wend. 421, is cited in the last case, but the court did not understand that case at all). See McIlhenny v. Jones, 6 Har. & J. 256. 6 Levy v. Drew, 14 Ark. 334. 12 4 Beebe v. Brooks, 12 Cal. 308; Hunt v. Wadleigh, 26 Me. 271; Jones v. Middleton, 29 Iowa, 188 (the court does not seem to know that it is overruling Hall v. Monohan, 6 Iowa, 216); Sanborn v. Southard, 25 Me. 409; Godwin v. Davenport, 47 Me. 112; Hart v. Eastman, 7 Minn. 74: Union Bank v. Ezell, 10 Humph. 385; Corwith v. Morrison, 1 Pin. 489; Jones v. Robinson, 11 Ark. 504; Stewart v. French, 2 Cranch, C. C. 300. 5 Cox v. Jones, 2 Cranch, C. C. 370; Colt v. Bernard, 18 Pick. 260; Tyler v. Young, 30 Pa. 143; Shelby v. Judd, 24 Kan. 161; Stockman v. Riley, 2 McCord, 398; Attwood v. 13 7 Light v. Kingsbury, 50 Mo. 331. 8 Bassenhorst v Wilby, 45 Ohio. St. 333. 9 Hill v. Martin, 12 Mart. (O. S.) 177. 10 Eisenford v. Dillenback, 15 Hun, 23. 11 Jones v. Robinson, 11 Ark. 504. 12 See the case in note 10, supra. 13 Goodwin v. Davenport, 47 Me. 112. of four weeks,1 has been considered reasonable. No different rule should be applied than the rule already stated as to demand bills not circulated 15 and demand notes,16 § 254. Demand upon checks.- A check being an order payable upon demand and negotiable should be treated as to demand as a demand draft. Generally speaking, a check therefore resembles a demand draft, but business convenience has produced one very important difference. A check, like a demand draft, is not entitled to days of grace,' unless it is post-dated upon its face; nor is the drawer of the check entitled to claim a demand unless he has been injured thereby, and then he is released only to the extent of his injury. But as to the indorser of a check, the same rule prevails as to a demand draft," except, perhaps, that a check, unless it be a bank check or a certified check, cannot be put into circulation, although it has been suggested that it can 14 Van Hoesen v. Van Alstyne, 3 Wend. 75. This decision is, of course, wrong. The upper court expresses its regret that the lower court did not do justice secundum artem, and then proceeds to make this astounding ruling, which is not so bad as to demand, but is wholly inexcusable as to the notice. 15 See § 251, ante. 16 See § 252, ante. 1 See § 206, ante, note 2. 2 See § 206, ante, note 8. 3 Exchange Bank v. Sutton Bank, 78 Md. 577; Allen v. Kramer, 2 Bradw. 205; Offutt v. Rucker, 2 Ind. App. 350; Springfield Fire Ins. Co. v. Tincher, 30 Ill. 399 (in this case the document was a check, but the court treats it as a demand draft, and makes a correct ruling, but uses an incorrect dictum); Gough v. Staats, 13 Wend. 549; Gregg v. George, 16 Kan. 546; Henshaw v. Root, 60 Ind. 220; Stewart v. Smith, 17 Ohio St. 82. 4 Pack v. Thomas, 13 Smedes & M. 1; In re Brown, 2 Story, 502; Griffin v. Kemp, 46 Ind. 172; Woodin v. Frazer, 38 N. Y. Super. Ct. 190. 5 Veazie Bank v. Winn, 40 Me. 60; Parker v. Reddick, 65 Miss. 242; Mohawk Bank v. Broderick, 13 Wend. 133; First Nat. Bank v. Miller, 37 Neb. 500; Gough v. Staats, 13 Wend. 549. 6 See the second and fourth cases in the last note. Nat. State Bank v. Weil, 141 Pa. 457: Industrial Co. v. Weakley, 103 Ala. 458; Gifford v. Hardell, 88 Wis. 538. But Stephens v. McNeill, 26 Barb. 651, and Middleton Bank v. Morris, 28 Barb. 616, recognize that a check may be put into circulation, especially as to a party who knew that was the intention. See also Taylor v. Wilson, 11 Met. 44. As to bank checks, McDonald v. Mosher, 23 Ill. App. 206, states the rule with positiveness that they may be put into circulation, and Nutting v. be so treated. Therefore, as to the regular indorser of a check, or as to a drawer who has been injured, the check must have been presented for payment within a reasonable time under all the circumstances. If the parties reside in the same place, that reasonable time is at most the next day after its receipt by the holder. If the parties, holder and drawee, do not reside in the same place, the check should be forwarded upon the next day after its receipt.10 But the check may be put through the usual course of business, though that course may be circuitous." It is not doubted that a party may always deposit a check in a bank for collection or for deposit, and the presentment is reasonable if Burked, 48 Mich. 241, and Marbourg 8 Bull v. First Nat. Bank, 14 Fed. R. 612, reversed in 123 U. S. 105 (both decisions stating the same principle. But the lower court had held that a check not presented within a reasonable time was dishonored and overdue, and therefore an indorsee took subject to equities between the drawer and the first indorser or payee. The upper court reverses this ruling, and holds that a check is not overdue, as to an indorsee for value, until it has been presented for payment and payment has been refused); Mohawk Bank v. Broderick, 10 Wend. 304, 13 Wend. 133; Wood ruff v. Plant, 41 Conn. 344; Pollard v. Bowen, 57 Ind. 232; Marbourg v. Brinkman, 23 Mo. App. 511; Hemmelman v. Hotaling, 40 Cal. 111. 9 Simpson v. Pacific Mut. Ins. Co., 44 Cal. 139; Cawein v. Browinski, 6 Bush, 457; Wear v. Lee, 87 Mo. 358; Smith v. Miller, 43 N. Y. 171; Doherty v. Watson, 29 Wkly. Notes Cas. 32; Schoolfield v. Moon, 9 Heisk. 171. In First Nat. Bank v. Alexander, 84 N. C. 30, it is suggested that, if the holder of the check knows the bank to be in a failing condition, he should show greater promptitude. The rule excludes Sundays, of course. O'Brien v. Smith, 1 Black, 99. 10 Smith v. Janes, 20 Wend. 192; N. W. Coal Co. v. Bowman, 69 Iowa, 150. This rule is extended, by statute covering bills of exchange (Warner v. Citizens' Bank, 6 S. D. 152), as to a bank check. 11 Werk v. Mad River Valley Bank, 8 Ohio St. 301; First Nat. Bank v. Buckhannon Bank, 80 Md. 475; Allen v. Kramer, 2 Bradw. 205; Backwill v. Bridgeport Wood Co., 62 Ill. App. 663. |