XVII.

If the bill be made payable at a banker's a presentment CHAPTER should be made there (o). And if the bill be accepted payable at a banker's, which banker happens to become the holder at its maturity, that fact alone amounts to presentment, and no other proof is necessary (p). If a bill be made payable in a particular town, a presentment at all the banking houses there will suffice (); if at one of two towns a presentment at either (r); if a particular house be pointed out by the bill as the acceptor's residence, a presentment to any inmate (s), or, if the house be shut up, at the door, will suffice (t).

But where a bill is accepted, payable at a particular Pleading. place (u), it is not necessary in an action against the drawer to state the acceptance as such, and, therefore, not necessary to state it to be at a particular place, nor to allege presentment at that place. Such a presentment as the acceptance requires is merely matter of evidence (w). But if the special acceptance were alleged in the declaration, it might be necessary to state in an action against a drawer or indorser such a presentment as the acceptance required, though a general allegation might suffice after verdict (x). If a bill be made payable at a particular place, it is not necessary to state a presentment to the acceptor there; it is sufficient to state a presentment at that place (y). An

87; Boydell v. Harkness, 3 C. B. 168.

(0) Saunderson v. Judge, 2 H. Bl. 509; Harris v. Parker, 3 Tyrw. 370.

(p) Bailey v. Porter, 14 M. & W. 44.

(q) Hardy v. Woodroofe, 2Stark.

319.

(r) Beeching v. Gower, Holt, N. P. C. 313.

(8) Buxton v. Jones, 1 M. & G. 83.

(t) Hine v. Allely, 4 B. & Ad. 624; 1 N. & M. 433.

(u) In an action against the acceptor, the bill may be described as payable at a particular place, though not accepted payable there only. Blake v. Beaumont, 4 M. & G. 7.

(w) Parks v. Edge, 1 C. & M. 429; 3 Tyrw. 364; Harris v. Parker, 3 Tyrw. 370; Hine v. Allely, 4 B. & Ad. 624; 1 N. & M. 433; and see Hawkey v. Bor

wick, 4 Bing. 135; Hardy v.
Woodroofe, 2 Stark. 319.

(x) Lyon v. Holt, 5 M. & W.
250. The sufficiency, however,
of such a general allegation, even
after verdict, did not seem to be
perfectly clear, at all events where
no issue was taken on the present-
ment. In an action against the
drawer, where the bill was drawn
and accepted payable in London,
but there was no traverse of the
general allegation of presentment,
it was held that the statement of
the venue London in the margin
of the declaration cured the de-
fect. Wilmot v. Williams, 14
L. J., C. P. 33; 7 M. & Gr.
1017; and see Boydell v. Hark-
ness, 15 L. J., C. P. 233; 3 C. B.
168.

(y) Shelton v. Braithwaite, 8 M. & W. 252; Hawkey v. Borwick, 1 Y. & J. 376; 4 Bing. 135; 12 Moore, 478; Philpot v. Bryant, 3 C. & P. 244; 4 Bing. 717; 1

XVII.

CHAPTER averment that a bill was presented to the acceptor will be satisfied by proof that it was presented at the place where it was made payable, though no person were there in attendance (*), and though the acceptor did not live there (a).

Payable at more than one place.

Conduct of the party presenting.

Consequence of not duly

presenting.

Acceptor or

Where a promissory note is payable at either of two places, presentment at either of them will suffice. Thus, where a country bank note was made payable both at Tunbridge and in London, presentment in London was held sufficient, though it was proved that had it been presented at Tunbridge, the nearest place, it would have been paid (b). But it is conceived that presentment of a cheque to the London bankers of the drawer, though described on the cheque as agents, is insufficient, for the obligation to pay a cheque must in general depend on the state of the drawer's account, which the London agents may not know (c).

The party presenting should be ready and authorized to receive the money, and has no right (at least, unless usage require it) to impose on the drawee any trouble or risk in remitting the money elsewhere (d). If the holder die, presentment should be made by his personal representatives.

The consequence of not duly presenting a bill or note is that all the antecedent parties are discharged from their liability, whether on the instrument, or on the consideration for which it was given (e), save, as we have seen, the drawer of a cheque not injured by the delay or failure.

The acceptor or maker, however, still continues liable in

M. & P. 754; and see Bush v.
Kinnear, 6 M.& Sel. 210; Huffam
v. Ellis, 3 Taunt. 415; Ambrose
v. Hopwood, 2 Taunt. 61; De
Bergareche v. Pillin, 3 Bing. 476;
11 Moore, 350.

(z) Hine v. Allely, 4 B. & Ad.
624; 1 N. & M. 433; and see
Hardy v. Woodroofe, 2 Stark. 319.
So where a bill was drawn on
an acceptor at 38, Minto Street,
accepted generally, and when due,
the acceptor having changed his
residence, was presented to a
lodger at No. 38, the presentment
was held sufficient. Buxton v.

Jones, 1 M. & Gr. 83; 1 Scott,
N. R. 19, S. C.

(a) Hardy v. Woodroofe, 2 Stark. 319.

(b) Beeching v. Gower, Holt N. P. C. 313.

(c) Bailey v. Bodenham, 33 L. J., C. P. 252. (d) Ibid.

(e) Code, s. 45. In case of a bill or note payable after sight, it must, as we have seen, have been presented to the acceptor or maker previously. Dixon v. Nuttal, 1 C., M. & R. 307; Code, s. 39.

XVII.

most cases, presentment not being generally necessary for CHAPTER the purpose of charging him (f). The action itself is sufficient demand, and that though the instrument be maker still made payable on demand (g). But though the absence of liable demand be in general no defence, yet if the acceptor or maker pay on action brought without any previous demand, the court will take the question of costs into consideration (h).

There are circumstances, however, which will excuse the Neglect to neglect to present for payment (i).

The fact that the holder has reason to believe that the bill or note will on presentment be dishonoured, does not dispense with the necessity for presenting for payment (k). The bankruptcy or insolvency of the drawee or maker is no excuse for not presenting, for many means may remain of obtaining payment by the assistance of friends or otherwise (7).

present when excused.

Delay in making presentment for payment is excused if Delay when caused by circumstances beyond the control of the holder, excused. and not imputable to his default, misconduct or neglect.

CHAPTER When the cause of delay ceases to operate, presentment must be made with reasonable diligence (m).

XVII.

Not necessary

to charge a guarantor.

Presentment for payment is dispensed with when, after the exercise of reasonable diligence, it cannot be effected. If the acceptor or maker abscond, and his house be shut up, the bill or note may be at once treated as dishonoured; but if he have merely removed, an effort must be made to find him out (n).

When a bill or note is seized under an extent, the drawer and indorsers are not discharged by non-presentment, for laches is not imputable to the Crown.

Presentment for payment is also dispensed with when the drawee is a fictitious person; and as regards the drawer, when the drawee or acceptor is not bound, as between himself and the drawer, to accept or pay the bill, and the drawer has no reason to believe that the bill would be paid if presented (o); and so, too, as regards an indorser, if the bill or note were made for his accommodation, and he has no reason to expect that it would be paid if presented (p).

Neglect to present has been held not to discharge a man who guarantees the due payment of a bill or note (q); and where a man became guarantor for the vendee of goods, who accepted a bill for the amount and then became bankrupt, the notorious insolvency of the

(m) Code, s. 46 (1).

(n) Ibid. (2) a; Anon, 1 Ld. Ray. 743; Hardy v. Woodroofe, 2 Stark. 319; Hine v. Allely, 4 B. & Ad. 624; 1 N. & M. 433; Collins v. Butler, 2 Stra. 1087; Sands v. Clarke, 19 L. J., C. P. 84; 8 C. B. 751. If the drawer could not be found, it was suffi cient to plead that fact without averring due search: Starke v. Cheesman, Carthew, 509; 1 Ld. Ray. 538; but if presentment were alleged, evidence that the drawer could not be found was admissible. Leeson v. Pigott, circa. 1788; Burgh v. Legge, 5 M. & W. 421.

(0) Terry v. Parker, 1 Nev. & Per. 752; 6 A. & E. 502; Prideaux v. Collier, 2 Stark. 57; Hill v. Heaps, D. & R., N. P. C. 57; De Berdt v. Atkinson, 2 H. Bla. 336; Wirth v. Austin, L. R., 10 C. P. 689; Code, s. 46 (2) b and c;

i.c. when the drawce has no effects of the drawer in his hands, nor, it should seem, reasonable probability of receivingany. Cumming v. Shand, 22 L. J., Ex. 129. But presentment must be made to charge an indorser. Saul v. Jones, 28 L. J., Q. B. 37; 1 E. & E.

59.

(p) Code, s. 46 (d).

(9) Hitchcock v. Humfrey, 5 M. & G. 559; Walton v. Mascall, 13 M. & W. 453. Nor is a guarantor entitled in general to notice of dishonour; but when by custom it is usual to guarantee, instead of indorsing bills of exchange, the party guaranteeing is, as regards his rights against the acceptor, in much the same position as an indorser; In re Bishop, L. R., 15 Chan. D. 400; and consequently may well be entitled to expect due presentment, and perhaps, too, notice of dishonour.

XVII.

vendee was held to excuse the drawer's presentment, so as CHAPTER to enable him to charge the guarantor without, unless it could be shown that the bill would have been paid if duly presented, though it would have been otherwise in an action on the bill (s).

There may also be a waiver, express or implied, of due Waiver. presentment (t). An implied waiver would be gathered from the conduct of the party, as when a man with notice of the failure or undue delay in presentment, promises to pay the bill, or makes or promises to make a partial payment on account (u). The defendant's part payment or promise to pay after the bill or note is due, is primâ facie evidence of presentment (v).

A bill or note is dishonoured by non-payment when either Dishonour by it is duly presented and payment is refused, or cannot be non-payment. obtained, or presentment being excused it remains overdue

and unpaid (w).

Subject to the other provisions of the Code, an immediate right of recourse against the drawer and indorsers accrues to the holder (x).

(s) Warrington v. Furber, 8 East, 242; 6 Esp. 89; Smith v. Bank of New South Wales, L. R., 4 P. C. 194.

(t) Code, s. 46 (2) e.

(u) Vaughan v. Fuller, 2 Stra. 1246; Hopley v. Dufresne, 15 East, 275; Haddock v. Bury, 7 Fast, 236; Hodge v. Fillis, 3 Camp. 463; Goodall v. Dolly, 1 T. R. 712; Anson v. Bailey, Bull. N. P. 276. As to express waiver inserted in the bill itself, see Code, s. 16.

(v) Croxon v. Worthen, 5 M. &

W. 5; Lundie v. Robertson, 7
East, 232; Campbell v. Webster,
15 L. J., C. P. 4; 2 C. B. 258;
Greenway v. Hindley, 4 Camp.
52; Cordery v. Colville, 32 L. J.,
C. P. 111.

(w) Code, s. 47 (1).

(x) Ibid. (2). The other provisions seem to be ss. 48 and 51, as to notice of dishonour and protest necessary to preserve that right of recourse; and ss. 15 and 65-68, as to referee in case of need; and acceptance and payment for honour.