15 days. 3dly. Time 30 do. Rome, - In a late case, however, it was proved, that at Hamburgh the holder of a bill is not bound to present the bill for payment until the 11th day after the time limited for its payment, where the eleventh is a post-day, but that if the eleventh be not a post-day he must present it by the next preceding post-day. And in another case it was held, that where a bill is drawn on a person resident at a place near Hamburgh, the holder need not present it until the eleventh day, although the eleventh be not a post-day. when the presentmentshould be made. On bank post bills payable after sight, it has been said, that no days 266 ] of grace are claimed: and whenever a bill is drawn payable to the excise, it is also said they usually allow six days beyond the three days of grace, if required by the acceptor, on payment of one shilling to the clerk at the expiration of the six days, for his trouble; and in a case where the commissioners of excise, being the payees of such a bill, gave the drawee the above time, Lord Mansfield decided, that as this custom was a general one, engrafted on such bills, and known universally, the drawer was not discharged by the above indulgence to the drawee." The days of grace which are allowed on a bill of exchange must always be computed according to the law of the place where it is due. At Hamburg, and in France the day on which the bill falls due makes one of the days of grace; but it is not so elsewhere. In Great Britain, Ireland, France, Amsterdam, Rotterdam, Antwerp, Mid Goldsmith and another v. Shee, C. P. cor. Lord Eldon, 20th Dec. 1799. Bayl. 110, n. 1. A bill for 500/., drawn on Katter at Hamburgh, at three usances, was dated the 25th June, 1799; it was presented for payment on the 4th of October, which was a post-day. In an action by the indorsees against the payee, the defence was that the presentment was improper; but it was proved in evidence as a settled usage at Hamburgh, that although it is usual to pay bills on the day they become due, the holder may, if he pleases, keep them a certain number of days, called respite days, and that the number of respite days is eleven, where the eleventh is a post-day; but where the eleventh is not a post-day, the respite days extend to the preceding post-day only, the holder being obliged, at his peril, to protest, and send off the protest by the eleventh day. Verdict for the plaintiffs. But it is observed (Bayl. 111) that this is not consistent with the Hamburgh ordinance, art. 17, in which it is stated, that the holders may postpone the protest until the twelfth day, if it be not a Sunday or a holiday, Goldsmith and another v. Bland and another, C. P. cor. Lord Eldon, 1st of March, 1800. A bill for 9981. 98. 9d. drawn on Treviramus, of Bremen, but payable in Hambugh, at three months, was dated the 15th June 1799; it was • Lovl. 227. "Welford v. Hankin, at Guildhall, Sittings after Hillary Team, 1763, 1 Esp. Rep. 59. * Kyd, S. y Beawes, pl. 260. Selw. N. P. 4th ed. 338, n. 52. 39 & 40 Geo. 3. c. 38 3dly. Time dleburg, Dantzick, and Koningsburg, Sundays and holidays are when the always included in the days of grace; but not so at Venice, Cologn, present- Breslau, and Nuremburg. In this country, if the third day of grace be made. happen to be a Sunday, Christmas-day, or Good Friday, upon mentshould Of usances. which no money ought to be paid, the holder ought to present for payment upon the second day of grace, and in case it be not then paid, must treat the bill as dishonoured. (341) In other cases, a presentment before the third day of grace, being premature would be a mere nullity. a Foreign bills, as have been already observed, are usually drawn payable at one, two or more usances. The term usance is French, and signified the time which it is the usage of the countries between which bills are drawn, to appoint for payment of them. The length of the usance, or time which it includes, varies in different countries, from fourteen days to one, two, or even three months after the date of the bill. Double or treble usance is double or treble the usual time, and half usance is half that time; when it is necessary to divide a month 267 upon a half usance, the division, notwithstanding the difference in the length of the month contains fifteen days." (341) So in the United States, wherever days of grace are allowed, if the third day be a Sunday, or a holiday, as the fourth of July, the bill is due on the second day of grace. Jackson v. Richards, 2 Caines' Rep. 343. Lewis v. Burr, 3 Caines' Ca. in Err. 195. Griffin v. Goff, 12 John. Rep. 423. Farnum y. Fowle, 12 Mass. Rep. 89. But in this last case the court expressed a doubt, if in Massachusetts, the principle applied to any other day except Sunday, as there are no fixed and established holidays, on which all business is suspended. See Jones v. Fales, 4 Mass. Rep. 245. See also Johnson v. Haight & Matthews, 13 John. Rep. 470, and Griffin v. Coff, 12 John. Rep. 423. That if the third day of grace fall on Sunday presentment for payment should be made on Saturday, see Bussard v. Levering, 6 Wheat. 102. Furnan v. Harman, 2 McCord, 436. Brabant, France, Flanders, and Usance between Amsterdam and Italy, Spain, and Portugal, is 2 Usance between Amsterdam and calendar months. These usances are calculated exclusively of the day of the date of the bill. At the expiration of the appointed usance the bill would be apparently due, but the custom of merchants has allowed the drawee [ 268 ) further time, called days of grace, which are in general calculated as before mentioned, exclusively of the last day of usance; and on the Jast of these three days the bill should, in this country, be presented for payment. after date, &c. when due, When bills, &c. are payable at one, two, or more months after date, Bills paya or sight, the mode of computing the time when they become due, dif-ble fers from the mode of computation in other cases. In general, whèn a deed or act of parliament mentions a month, it is construed to mean a lunar month, or twenty-eight days, unless otherwise expressed;1 but in the case of bills and notes, the rule is otherwise, and when a bill is made payable at a month or months after date, the computation must in all cases be by calendar, and not by lunar months;(345) thus when a bill is dated the 1st of January, and payable at one month after date, the month expires on the 1st of February, and with the addition of the days of (343) The same rule is recognised in the United States. Leffingwell v. White, 1 John. Cas. 99. See Loring v. Halling, 15 John. Rep. 120. And a bill payable at so many days after sight, means so many days after legal sight, that is, so many days after the acceptance, for that is the sight to which the bill refers. Mitchell v. Begrand, 9 Mason's Rep. 176. &c. Bills paya- grace, the bill is payable on the 4th of February, unless that day be a ble after Sunday, and then on the 3d. When one month is longer than the suc date, when due. ceeding one, it is said to be a rule not to go, into the computation, into a third month; thus, on a bill dated the 28th, 29th, 30th, or 31st January, and payable one month after date, the time expires on the 28th of February in common years, and in the three latter cases in leap year on the 29th." When the time is computed by days, the day on which the event happens to be excluded." When a bill purports to be payable so many days after sight, the days are computed from the day the bill was accepted, exclusively thereof, and not from the date of the bill, or the day the same came to hand, or was presented for acceptance; for the sight must appear in a legal way, which is either by the parties accepting the bill, or by protest for nonacceptance.P Bills at With respect to a bill payable at sight, though from the very lansight when guage of the instrument it should seem that payment ought to be made due. immediately on presentment, this does not appear to be so settled. The decisions and the treatises differ on the question, whether or not [269] days of grace are allowable. Pothier, enumerating the various kinds of bilis, states that a bill payable at sight is payable as soon as the bearer presents it to the drawee; but in another part of this work, it appears that this opinion is founded on the words of a particular French ordinance, which cannot extend to bills payable in this country; however, he assigns as a reason that it would be inconvenient if a person who took a bill at sight, payable in a town through which he meant to travel, and the payment of which he stands in need of for the purpose of continuing his journey, should be obliged to wait till the expiration of the days of grace after he presented the bill; a reason obviously as applicable to the case of a bill drawn payable at sight in this as in any other country. Beawes, in his Lex Mercatoria, says, that bills made payable here at sight, have no days of grace allowed, although it would be otherwise in the case of a bill made payable one day after sight. Mr. Kyd, in his Treatises, expresses the same opinion. But it seems, that the rule is unsettled." In Dehers v. Har riot, it was taken for granted that days of grace were allowable on a bill payable at sight. The same point was decided in Coleman v, Sayer. And in another case, where the question was, whether a bill payable at sight was included under an exception in the stamp act, 23 Geo. 3. c. 49. s. 4. in favour of bills payable on demand, the court held, that it was not; and Buller, J. mentioned a case before Willes, C. J. in London, in which a jury of merchants were of opinion, that the usual days of grace were to be allowed on bills payable at sight. And Mr. Selwyn, in his Nisi Prius, observes, that the weight of authority is in favour of such allowance." When a check or bill or banker's note is expressed to be payable on demand, or when no time of payment is expressed, it is payable instantly on presentment, without any allowance of days of grace, and the presentment for payment of such a check or bill must be made within a reasonable time after the receipt of it." (345) When checks, bills, &e. demand should be presented for pay ment. It has been frequently disputed; whether it is the province of the court, or of a jury, to determine upon the reasonableness of the time within which a check, &c. payable on demand, should be presented for payment. Formerly it was thought that it was a question for the jury; but the decisions, even of mercantile juries, were found so much [270] at variance from each other, that for the sake of certainty on the subject, it is now settled, that the reasonableness of the time for presentment is partly a question of fact, and partly of law; the jury are to find the facts, such as the distance at which the parties are from each other, the course of the post, &c. ; but when those facts are established, the reasonableness of the time is a question of law, upon which the judge is to direct the jury, though judges may take the opinion of a jury as to what is convenient with reference to mercantile transactions. This doctrine though formerly by no means universally as d b Bayl. 103, 4, 5. © Ante, 262. Bayl. 103. 2 Taunt. 394. Tindal v. Brown, 1 T. R. 168.Darbishire v. Parker, 6 East, 3. 9. 10. 11. 14. 16. Parker v. Gordon, 7 East, 386. Haynes v. Birks, 3 Bos. & Pul. 599. Appleton v. Sweetapple, 1 Esp. Rep. 58. Bayl. 106, note c. The King r. The Dean of St. Asaph, 3 T. R. 428, d Per Grose, J. in Scott v. Lifford, (345) The same rules have been recognised in the United States. A note which expresses no time of payment, is by law payable immediately. Herrick v. Bennett, 8 John. Rep. 374. Thompsom v. Ketcham, 8 John. Rep. 189. Field v. Nickerson, 13 Mass. Rep. 131. And checks and notes payable on demand, must be demanded within a reasonable time. Freeman v. Haskins, 2 Caines' Rep. 369. Cruger v. Armstrong, 3 John. Cas. 5. Conroy v. Warren, 3 John. Cas. 359. But if the drawer of the check sustain no injury by the delay, as where the bank has always remained in good credit, and the drawer has defeated the payment of the check by withdrawing his funds from the bank, he cannot object to a delay in presenting it. Ibid. If a creditor receive an order on a third person for his debt, and neglect to present it for payment in a reasonable time, the drawer will be discharged. Brower v. Jones, 3 John. Rep. 203. and see Tucker v. Manwell, 11 Mass. Rep. 143. A note payabled on demand is not entitled to any days of grace, but an action may be brought on it immediately without any other demand. Cammer v. Harrison, 2 McCord 264. Where a bill is drawn payable at sight or a certain number of days after sight, there is no fixed rule for its presentment, but the holder is bound to use due diligence and put the note into circulation. Robertson v. Ames, 20 Johns 146. Where a promissory note is payable on demand with interest, demand and notice must be made and given within a reasonable time after date. Sice v. Cunningham 1 Cowen. 397. Martin v. Winslow, 2 Mason. 241. And where such note is made and negotiated in the ordinary way without any agreement or understanding among the parties as to the time when it is to be paid, and all the parties reside in the same city, five months is not a reasonable time. Ibid. But such agreement between the original parties, not communicated to the indorser will not bind him. Ibid. And any offer by the indorser to give his own note in satisfaction of the indorsed note, is not a waiver of notice, unless the offer is accepted at the time by the holder. Ibid. In Winslow v. Martin, 2 Mason 141, a neglect to demand payment of a note payable on demand, for seven months, was held an unreasonable delay, and discharged the indorser: and that a promise to pay with a full knowledge of all the facts was binding on the indorser, although otherwise discharged: if he promised in ignorance of material facts affecting his rights, it was not a waiver of those rights. |