of defence, and must be proved by the indorser. And, on the other hand, the indorser would be discharged if the note were not at the bank on the day of payment, although a personal demand were made on the maker. (Gillett v. Arnil, 5 Denio, 88.)

To whom Presentment is to be made.

It is, generally speaking, requisite that presentment for acceptance should be made to the drawee personally, if possible, but in cases of presentment for payment it is not necessary. When, upon a presentment for acceptance, the drawee should not happen to be at his house or counting-room, but be temporarily absent, and no one there should be authorized to answer, the holder is not bound to consider it as a refusal to accept, but he may wait a reasonable time for the return of the drawee; and even waiting and presenting the bill anew on the next day will not be unreasonable. But no such delay to the next day is allowable, if the acceptor or promisor is not at home on the day when the bill or note becomes due; and if there be no one then ready at the place to pay the bill or note, it should be treated as dishonored, and protested for nonpayment. However, if at the time of calling for payment the acceptor or promisor is out, the holder may wait and call again, if he choose, at any reasonable hour of the same day, before he is obliged to treat the bill or note as dishonored.

Bills and Notes payable on Demand.

But

If a bill or note is payable on demand, or is indorsed after it is overdue, payment should be demanded within a reasonable time, in order to charge the indorser. What is reasonable time depends upon circumstances, and is a question to be decided in each particular case. such a note or bill must not be locked up, and kept out of circulation, or the loss of payment will fall upon the holder. If A take a bill or note payable to bearer on demand, for a preexisting debt, and, instead of putting it into circulation or presenting it for payment in a reasonable time, keep it by him, and such bill or note be afterwards dishonored, the debt will be considered as extinct, and the loss will fall upon A. And it will make no difference, though the person by whom the bill or note was to be paid had stopped payment, and would not have paid it if presented, unless it could also be shown that the person giving the bill or note to A knew that the person who was to pay it had stopped payment, so as to make it a fraud in him to give it to A. (Camidge v. Allenby, 6 Barn. & Cres. 373.)

In Massachusetts it has been established, by statute, that a note on demand must be presented within sixty days, in order to charge the indorsers.

In other States cases have been decided different ways. It was held in New York, that a presentment for payment five months after the date of the note was unreasonable delay. And in Maine (see Lord v. Chadbourne, 8 Greenl. 198) it was held, that, where a note payable on demand is indorsed, and the indorser requests the indorsee "not to call

on the maker at present," this will not justify the indorsee in not calling on the maker till after six months from the time of indorsement. But it was said in the case of Kneeland v. Hyde, 2 Hall, 429, by the court, in New York, "that the rule requiring a presentment within a reasonable time was intended for, and is applicable to, negotiable instruments made for commercial purposes only. It was not intended for cases of suretyship, or notes of a like description." In this case the note was given for money borrowed "with interest from date," and interest on the note was paid at the end of the year and indorsed on the note, and payment was demanded two years after the date of the note. The indorser was

held liable.

A note transferred after it is due is to be considered a note payable on demand, and is subject to the rules applicable to such a note. (Van Housen v. Van Alstyne, 3 Wendell, 75.)

CHAPTER VII.

PROCEEDINGS ON NON-ACCEPTANCE OF BILLS, AND NON-PAYMENT
OF BILLS AND NOTES.

THE holder of a bill which has been refused acceptance, no matter whether this refusal has been absolute, or qualified, or conditional, and the holder of a bill or note which has been refused payment, must thereupon take certain requisite steps for the purpose of securing to himself the right of claiming the amount of the bill or note from other parties to the instrument. In the case of a bill the drawer and the indorsers, and in case of a note the indorsers, are conditionally liable to pay to the holder the sum of money mentioned in the bill or note. What these conditions are, we have already stated, and considered the duties of the holder of a bill or note before it has been refused acceptance or payment. We will now state the duties of the holder subsequent thereto.

Protest.

Immediately upon the drawee of a foreign bill refusing to accept it, or offering a qualified or conditional acceptance, it is the duty of the holder to have the bill duly protested, and notice thereof given to the *drawer and the indorsers, to whom he looks for payment. If he neglects to do this, they will not be obliged to pay the bill. The same duty devolves upon the holder of a bill or note, in case of non-payment of the instrument.

A protest is a solemn declaration on behalf of the holder, drawn up by an official person, against any loss to be sustained by the non-acceptance or the non-payment of a bill. This protest is required to be made out and drawn up by a notary public, if there be one in or near the place where the bill is to be accepted or is payable. If there be none, then

it is sufficient, that a respectable inhabitant of the place should perform the duties of the notary, in the presence of two witnesses. The form of the protest should be in conformity with the law or usage of the place.

Manner of Protesting.

Mr. Kyd, in his work on bills of exchange, describes the duties of the holder and of the notary public as follows: -"If the person to whom the bill is addressed, on presentment, will not accept it, the holder is to carry it to a person vested with a public character, who is to go to the drawee and demand acceptance in the same manner as before; and if he then refuse, the officer is there to make a minute on the bill itself, consisting of his initials, the month, the day, and the year, with his charges for minuting. He must, afterwards, draw up a solemn declaration, that the bill has been presented for acceptance, which was refused, and that the holder intends to recover all damages which he, or the deliverer of the money to the drawer, or any other, may sustain on account of the non-acceptance [or non-payment]. The minute is, in common language, termed the noting of the bill; the solemn declaration, the protest; and the person whose office it is to do these acts, a public notary; and to his protestation all foreign courts give credit. In making a protest, therefore, there are three things to be done, the noting, demanding, and drawing up the protest. But the noting is unknown in the law, as distinguished from the protest; it is merely a preliminary step, and has grown into practice only in modern times. The party making the demand must have authority to receive the money; and in case that be refused, the drawing up of protest is mere matter of form, the demand being the material part. The demand of payment of a foreign bill must be made by the notary public himself, and not by his clerk."

It is not necessary in the United States that the noting be done at the place where the bill is presented, but it is generally done in the office of the notary.

English Form of Protest.

The form of an English protest for non-acceptance is as follows:

"On this twenty-fifth day of November, one thousand eight hundred and fifty-one, I, Thomas Palgrave, Notary Public duly admitted and sworn, dwelling in Liverpool in the County of Lancaster and Kingdom of Great Britain, at the request of the holders thereof,

"Did exhibit the original bill of exchange, whereof a true copy is on the other side, to a clerk in the counting-house or office of Messrs. Jones & Co., No.- Cook street, Castle street, Liverpool,' [or to Mr. Jones, one of the firm of Jones & Co., as the case may be,] the persons on whom the same is drawn, and demanded acceptance thereof, when I received for answer that the said bill would not be accepted.

"Wherefore I, the said Notary, at the request aforesaid, have protested and by these presents do protest against the drawers and indorsers of the said bill and all others concerned for all exchange, re-exchar

all costs, damages and interest, present and to come, for want of acceptance of the said bill.

"Which I attest.

"THOMAS PAlgrave,

"Protest 10s. 6d.

(Seal.)

Notary Public."

[Copy of the bill

inserted with the names of all the indorsers.]

American Form of Protest.

The form of an American protest is as follows:

[Prefix an exact copy of the bill of exchange or note, with the names of all the indorsers.]

"Suffolk ss.

COMMONWEALTH OF MASSACHUSETTS.

"On this twentieth day of September, in the year of our Lord one thousand eight hundred and fifty-two,

"I, John Brown, Notary Public, by legal authority admitted and sworn, and dwelling in the city of Boston, at the request of the holders [or give the names], of the city of Boston, went with the original bill of exchange, of which the foregoing is a true copy, to the counting-house of George White, and presented the same to the said White for acceptance, when I received for answer, that the same would not be accepted [or whatever the real state of the facts may be].

"Wherefore I, the said Notary, at the request aforesaid, have protested and by these presents do solemnly protest against the drawer of said bill of exchange, indorser, and all others concerned therein, for exchange, re-exchange, and all costs, charges, damages, and interest, suffered and sustained or to be suffered and sustained, by reason or in consequence of the (non-acceptance) of said bill of, exchange.

"This done and protested in Boston aforesaid, and my notarial seal affixed, the day and year last written.

(L. S.)

"JOHN BROWN, Notary Public."

It is highly important that a copy of the bill should be prefixed to all protests, with the indorsements thereon, verbatim, whenever practicable and that the reasons given by the drawee for non-acceptance or non payment should also be stated in the protest. The time of drawing up the protest and the form of it, is according to the law of the place where the protest is made. In England and America, the protest is noted on the very day of the dishonor, although it may not be drawn up in form on that day. A mere noting of the bill, without an actual protest for non-acceptance or non-payment will not suffice.

A protest on part of the holder is essential upon the dishonor of a foreign bill of exchange, in order to hold the drawer and indorsers liable; even if he have lost or misplaced the bill of exchange, he should still apply for acceptance thereof, and, upon refusal, protest the bill. But if the protest be prevented from being made in due time, or at all, by an inevitable accident, or by superior force, or by a dangerous infectious

disease, it will be a legal excuse. The want of protest is also excused by proof that the drawer (or the indorsers) requested that, in case of the dishonor of the bill, no protest should be made; or that the drawer had no funds in the drawee's hands, and had no right to draw the bill. So promise to pay the bill, after a full knowledge of the fact that no pro test was made, or a partial payment with such knowledge, will be a waiver of the protest.

In regard to inland bills, a protest is not, in general, necessary, unless it be made so by the local municipal law. We have already stated, that a bill drawn in one of the United States upon a resident in another State, is considered a foreign bill. (Kent's Comm., Lect. 44, p. 94.) Although the English law, requiring protest and notice of non-acceptance of foreign bills, has been adopted and followed as the true rule of mercantile law in the States of Massachusetts, Connecticut, New York, Maryland, Virginia, North Carolina, South Carolina, etc., the Supreme Court of the United States have held (see Brown v. Barry, 3 Dallas's R. 365) that in an action on a protest for non-payment on a foreign bill, protest for non-acceptance, or a notice of the non-acceptance, need not be shown, and that protest for non-payment is sufficient. This decision has been followed in Pennsylvania. (Kent's Comm., Lect. 44, p. 95.) But Judge Story, in his work on bills of exchange, remarks, that this would now be held law by the Court of the United States, only upon the ground of the local law of Pennsylvania as to bills drawn or payable there.

The place of protest for non-acceptance should be the place where the bill is to be presented for acceptance.

In Case of Non-payment.

We have stated before, that when a bill has been accepted, demand of payment must be made when the bill falls due, which is on the third day of grace, and we have also stated when and where, and by whom and to whom, it must be presented for payment. When payment is refused absolutely, or if only part payment is made, or if the tenor of the bill is not complied with, it becomes necessary for the holder that protest should be made, and due notice be given to the drawer and indorsers, stating the facts, exactly as in the case of non-acceptance of foreign bills. The place of the payment of the bill is that where the protest is to be made, and the law of that place is to govern, as to the time and formalities and acts of protest. By the law of England and America, the protest should be made on the last day of grace.

The Law of the Place of Contract governs.

We have already stated that the protest is to be made at the time in the manner, and by the persons, prescribed in the place where the bill is payable. But as to the necessity of making a demand and protest, and the circumstances under which notice may be required or dispensed with, these are incidents of the original contract, which are governed by the law of the place where the bill is drawn. They constitute implied conditions, upon which the liability of the drawer is to