When checks, bills, &c. It will be observed that this rule allowing the party receiving a bill, note, or check, payable on demand, until the next day to present it for payment, will not enable a succession of persons to keep such instru- payable on ment long in circulation, so as to retain the liability of all the parties, demand in case the same should ultimately be dishonoured by the maker of the should be note, or drawer of the check. presented forpayment [ 277 ] A presentment for payment of a bill, payable on a day certain, Time of the should in all cases be made within a reasonable time before the ex-day when the presentpiration of the day when it is due; and if by the known custom of any mentshould particular place, bills are only payable within limited hours, a present-be made. ment there, out of those hours, would be improper. This rule extends also to a presentment out of the hours of business to a person of a particular description, where, by the known custom of the place, all such persons begin and leave off business at stated hours; and therefore when a bill is accepted, payable at a banker's, it must be presented there before five o'clock, or the usual hour of shutting up their shop, and presentment afterwards will not entitle the notary to protest it. And it has been recently determined, that no inference is to be drawn from the circumstance of the bill being presented by a notary in the evening that it had before been duly presented within the banking-hours. However, a presentment of a bill at a bankers, where it is payable, is sufficient, although it be made after banking hours, provided a person be stationed there by the banker to return an answer, and refuses to pay the bill. And when the party to pay the bill or note is not a anoment it is paid in. The arrangement mentioned by the plaintiffs' witnesses ap. pears subservient to general convenience, and not contrary to the Law-merchant, which merely requires checks to be presented with reasonable diligence." * Admitted in Boehm v. Sterling, 7 R. R. 425. Bayl. 99. 110. Per Lord Ellenborough, in Parker v. Gordon, 6 Esp. Rep. 42. 7 East, 385; and in Elford v. Teed, 1 M. & S. 28, cited in Marius, 2d ed. 187. 170. Bayl. 99. Leftley v. Mills, 4 T. R. i Parker v. Gordon, 7 East, 385. 3 Smith, 358. 6 Esp. Rep. 41. S. C. Elford v. Teed, 1 M. & S. 28. Jameson v. Swinson, 2 Taunt. 224. 2 Campb. 374. Selw. Ni. Pri. 4th edit. 342. Parker v. Gordon. The drawee accepted the bill, payable at Davison and Co. his bankers; at the part of the town where Davison and Co. lived, bankers-shut up at six o'clock. The bill was not presented for payment until after six, when the shop was shut up, and the clerks gone. In an action against the drawer, Lord Ellenborough held, that this was not a good presentment, and nonsuited the plaintiff; and on a motion for a new trial, the court held, that if a party took an acceptance, payable at a banker's, he bound himself to present the bill during the banking hours; and therefore rule refused. N. Lawrence and Le Blanc, Justices, said the holder was not bound to take such an acceptance. Elford v. Teed, 1 M. & S. 28. 1 Garnett v. Woodcock, 1 Stark. 475. Indorsee of bill against acceptor. The bill in question was drawn by Hodson and Co. in Lancashire, upon the defendants in London, for the sum of 670l., payable to the order of the drawers, and indorsed by the drawers to the plaintiff. The defendants had accepted the bill, payable at Denison's and Co. bankers, London. The bill had been presented at Denison's and Co. between seven and eight in the evening of the day when it became due, and a boy returned for answer no orders. Campbell, for the defendants, contended, that since the bill was drawn in London, the place of payment being in the body of the bill, and had been accepted, payable at Denison's and Co. a presentment there was necessary; and that this was not a sufficient presentment, and cited Parker v. Gordon, 7 East, 385. Elford v. Teed, 1 M. & S. 28. There the court held, that the presentment at a banker's, after banking hours, was a nullity, although the presentment in that case had been made by a notary. He admitted, that when the bill had been made payable at a merchant's, a presentment, after banking hours, where a negative an swer had been returned on presentment of the bill, had been deemed to be sufficient; but this was the case of a presentment at a banker's. Lord Ellenborough. Bankers do not usually pay at so late an hour; but if a person be left there who gives a negative answer, there is no difference between that case and that of a presentment at a mes Time of the banker, a presentment at any time, even late in the evening, will in day when general suffice." the presentmentshould be made. On presentment for payment, the bill, unless paid, must not be left, Mode and if it be, the presentment is not considered as made until the money of present- is called for; and though it has been holden, that bankers are not guilty of neglect by giving up the bill to the acceptor, upon his de[279 livery to them of his check on another banker; this doctrine may now be questionable. P ment. Circum If at any instant before the actual payment of a bill or check, given stances ari- upon a condition, the drawer discover that the condition has not been sing be- performed, he may stop the payment thereof to the party who has thus tween preeluded the condition; and a banker who, upon presentment of a bill sentment and actual payment. chants. I think, it is perfectly clear, that if a banker appoint a person to attend, in order to give an answer, a presentment would be sufficient if it were made before twelve at night. Verdict for the plaintiff. In the ensuing term Campbell moved for a rule to show cause why there should not be a new trial; and he cited the words of Lawrence, J. in Parker v. Gordon, 7 East, 385, where he says, "the party might" have refused to take this special acceptance; but if he chose to take the accept ance payable in that manner, payable at the bankers, does he not agree to take it payable at the usual banking hours. Lord Ellenborough. In that case no answer was given upon the presentment of the bill. Upon the trial, I laid down nothing but that, if a servant was stationed for the purpose of giving an answer, it was sufficient. In general, there are two pre sentments, one in the morning, and the other in the evening; but if there be a presentment in the evening, and the party is ready to give an answer, he does all that is necessary. The banker returned an answer by the mouth of his servant, and non constat, but that he was stationed there for the express purpose. Rule refused. in Barclay v. Bailey, 2 Campb. 527. The presentment of a bill of exchange for payment at the house of a merchant, residing in London, at eight o'clock in the evening of the day it becomes due, is sufficient to charge the drawer. Action against the drawer of a bill of exchange, accepted by one David Hardy. At eight in the evening of the day the bill became due, it was presented at the house mentioned on the face of it, as the drawee's place of residence, when the answer given by a person who came to the door was, that Mr. Hardy had become bankrupt, and removed into another quarter of the town. On the part of the defendant it was proved, that he had a person stationed at this house for the purpose of taking up the bill, from nine in the morning till four in the afternoon, but that no one presented it during that time; and the point was strenuously argued, that a presentment so late as eight in the even ing was insufficient to charge the drawer. Lord Ellenborough. I think this presentment sufficient; a common trader is different from bankers, and has not any peculiar hours for paying or receiving money; if the presentment had been during the hours of rest, it would have been altogether unavailing; but eight in the evening cannot be considered an unseasonable hour for demanding payment at the house of a private merchant, who has accepted a bill. The plaintiff had a verdict. S. P. Jameson v. Swinton, 2 Taunt. 224. 2 Campb. 374. S. C. Bancroft v. Hall, Holt, C. N. P. 476. Morgan v. Davison, 1 Stark. 114. Assumpsit by the indorsee of a bill of exchange against the drawer. The bill was made payable at Herring and Richardson's, Copthal Court, London. The plaintiff proved presentment at Herring and Richardson's, who were not bankers, in Copthal Court, on the day when the bill became due, between six and seven in the evening, when no one was there but a girl left to take care of the counting house. Lord Ellenborough held, that this was a sufficient presentment; the hour was not an improper one, and the holder might reasonably expect to find the party in his counting-house at that time. D Hayward v. Bank of England, 1 Stra. 550. Bayl. 102. Russell v. Hankey, 6 T. R. 13. Hayward kept cash at the Bank, and paid in a banker's note; the runner to the Bank of England left it the next morning, and called for the money in the afternoon, but in the interval the banker had stopped; and though this appeared to be the usual practice at the Bank, King, C. J. said, it was dangerous to suffer persons to deal with notes in that manner, and that the Common Pleas were of that opinion in the like case, and he directed the jury to find for the plaintiff, which they did. Sed vide Turner v. Mead, 1 Stra. 416. and Hoar v. Da Costa, 2 Stra. 910. Russel v. Hankey, 6 T. R. 13. Wienholt v. Spitta, 3 Campb. 376. r Circum stances ari tween pre or check for payment, cancels the acceptance or drawer's name by mistake, may yet, upon discovering his error, before actual payment, sing beeffectually resist, such payment as if he had not so cancelled the draft, and where the drawee of a bill, on presentment for payment, said this sentment & bill will be paid, but we cannot allow you for a duplicate protest, and actual paythe holder refused to receive payment without the charges of such ment. protest, it was held, that the drawee was not bound to pay the bill." So where bankers, at whose house by the terms of the acceptance the bill was payable, had received money for the express purpose of taking up the bill two days after it became due, and upon tendering it to the holders, and demanding the bill, found that it had been sent back protested for non-payment, to the persons who indorsed it to the holders, it was decided, that such bankers, having received fresh orders not to pay the bill, were not liable to an action by the holders for money had and received, when, upon the bill's being got back and tendered to them, they refused to pay the money. But we have seen, that if one banker present for payment to another banker a check on him in the usual course, and the latter marks is as approved, importing that it shall be paid the next day, at the clearing-house, this is binding on the latter, and is equivalent to an acceptance, and he must at all events pay it." If the maker of a promissory note pay money into the hands of au agent to retire it, and the agent tenders the money to the holder, on condition of having it delivered up, and the note being mislaid, this [ 280 1 condition is not complied with, and the agent afterwards becomes bankrupt, with the money in his hands, it has been decided, that the maker is still responsible on the note.* PAYMENT of a bill may not only be made by the acceptor, but also by Sect. 2. Of any other party to it, and even by a total stranger, as in the case of a payment;& payment supra protest, which will be spoken of hereafter; and that of 1st, by and payment by the bail or either of the parties. b Payment should always be made to the real proprietor of the bill," or to one of several partners, or to some person authorized by him to receive it, as a factor, &c.; (358) and payment to the payee will, con to whom it may made. be (358) On presenting a note or bill for payment, the holder must have the bill with him, otherwise the demand will not be deemed effectual so as to charge the other parties. Freeman v. Boynton, 7 Mass. Rep. 483. And as the whole of a set of exchange constitute but one bill, payment to the holder is good, whichsoever of the set he may happen to have in his possession. Durkin v. Cranston, 7 John. Rep. 442. Payment to the general indorsee of a bill is good, and cannot be affected by any transactions between may made. Sect. 2. Of sequently, be inoperative, if he have ceased to be the proprietor of it, payment;& by having indorsed it to another person, and the drawer has notice of 1st, by and to whom it the fact. And if a bill be payable to A. B. only, and not negotiable, be it is said that A. B. in person must appear to demand payment. If the holder of a bill die, payment should not be made to his personal representative, unless he has a power of administering his effects. But payment to a person having obtained probate of a forged will of a deceased party will be valid.s On a bill payable to A. or order, to the use of B. payment should be made to A. or his indorsee, and not to B. If a bill be beneficial to a minor, payment to him would be valid; but a payment to a married woman, after knowledge of that fact, would not discharge the person making it. When a bill is indorsed to a person merely for the purpose of receiving payment for the indorser, and the authority given to the indorsee is afterwards revoked, either by the party himself or by operation of law, as by his death, it is said that payment to the indorsee will not discharge the person making it, if he had notice of the revocation; this doctrine, [281]however, is objected to by Beawes, in his Lex Mercatoria," and it must certainly be confined to the single case of an indorsement to an agent, for the purpose of his receiving payment for his principal. Payment of debts should not in general be made to the agent of an attorney." But in ordinary cases, the mere production of a bill of exchange, note, or check, is in general sufficient to warrant the payment to the person who produces it, and this without reference to the cir cumstance of his being the habitual agent of the same party. We have seen, that in general when the holder of a bill or note indorsed in blank or payable to bearer, loses or is robbed of it, and the person finding or stealing it, presents it to the drawee at the time it is due, and he pays it without knowing of the loss or robbery, such payment will discharge him; and although he had notice of such fact, yet if the person presenting the bill to him was a bona fide holder, such notice would not invalidate the payment.(359) But a payment before a bill or check is due, will not discharge the drawee, unless made to the & Poth. pl. 164. e Marius, 4th ed. 34. f Poth. pl. 166. Bayl. 143. 8 Allen v. Dundas, 3 T. R. 125. h Cramlington . Evans, 2 Vent. 310. Poth. pl. 166. Bayl. 143. ! Poth. 168. et Mar. 72, 3. sed quare. Yates v. Frecklington, Dougl. 622 P Anon. 12 Mod. 554. 2 Ld. Raym Id. 167. Barlow v. Bishop, 1 East, 930. Pal. P. & A. 181. him and the person by whom it was remitted; and if the bill has been protested for nos payment, he may waive the default and accept payment. Dirkin v. Cranston. But where a note was indorsed by the defendant for the accommodation of the makers, whe were then in good credit, and before negotiating, they became insolvent, and the defen dant then directed them not to part with the note, which they promised, but afterwards passed it to the plaintiffs with full notice of all the circumstances, in satisfaction of a debt, held that the plaintiffs could not support an action on the note. Skelding el al. v. Warren, 15 Johns. Rep. 270. (359) But if he have notice before payment that the bill has been lost, he pays it at his own perd, and if it turns out that the party had no title, he will be liable to the real owner. Lovcit v. Martin, 4 Taunt. Rep. 799. See Gorgerat v. McCarty, 1 Yeates Rep. 94. 1st. by and real proprietor of it; and therefore, where a banker paid a check the Sect. 2. Of day before it bore date, which had been lost by the payee, it was ad-payment; & judged that he was liable to repay the amount to the person losing it to whom it and it is perhaps advisable that an acceptor should in no case pay a bill may be before it is due, or after notice from the drawer or indorser not to made. pay it. And if bankers pay a check, under circumstances which ought to have excited their suspicion, and induced them to make inquiries before paying it, they cannot take credit for the amount in their account with their customer ;" and where a person pays a sum of money into a banker's for a special pupose, viz. to pay a particular bill, and the banker's clerk, by mistake, pays the money to the holder of another bill, he may sue the bankers for the amount, but not the party to whom the payment was made. Where a bill, transferrable only by indorsement, and not indorsed, is lost by the person entitled to indorse, no other person can transfer the interest in the bill; and consequently a payment by the drawee, even to a bona fide holder, will not in such case be protected. Payment to a person or his order, after the knowledge of his having [ 282 ] committed an act of bankruptcy, would be ineffectual. Thus it has been holden, that if a banker pay the draft of a trader keeping cash with him, after notice of an act of bankruptcy, the assignees may recover the money paid, either from the banker, or from the payee of the check, if such payee had notice of the bankruptcy, unless the payment were by compulsion of law, but still until a commission has issued against the holder, there is no defence to an action at his suit ; and after action bona fide brought by such party, it should seem that the defendant might safely put the money into court, in order to prevent further costs. So a payment made to a bankrupt, or his order, without notice of his being so, will, in all cases, discharge the person making it: and it has been holden, that if a debtor, not having notice of the bankruptcy of Ante, 147. Com, Dig. tit. Merchant, F. 7. Mar. 129, 130. Bacon v. Searles, 1 Hen. Bla. 89. Mar. 129. Com. Dig. tit. Merchant, F. 7. Ante, 148, 9. Scholey r. Ramsbottom, 2 Campb. 485. Ante, 148, 9. * Rogers v. Kelly, 2 Campb. 123. y Mead v. Young, 4 T. R. 28. Archer r. The Governor and Company of the Bank of England, Dougl. 337. et ante, 148, 9. Kitchen v. Bartsch, 7 East, 53. ante, 115, 6, 7, &c. Cooke's Bankrupt Laws, 584, 5. a Id. Ibid. Vernon v. Hankey, 2 T. R. 113. 3 Bro. 313. b Vernon v. Hanson, 2 T. 287. 14 Ves. 557. 1 Mont. 316; but see Clogg v. Phillips, 2 Campb. 129. d Prichell and others v. Down and others, 3 Campb. 131. Held, that where two partners have stopped payment, and a commission of bankrupt is taken out against one of them, a debtor to the firm, CHITTY ON BILLS. who knows of the stoppage, cannot re- their hands, under similar circumstances, e Foster v. Allanson, 2 T. R. 479. 14 f1 Jac. 1. c. 15. s. 14; and see 46. Geo. |