2ndly Bi and so 'n and where ment should Se made. If the drawee have merely removed from the place in which the bill represents him to reside, it is incumbent on the holder to use the present every reasonable endeavour to find out whither he hath removed, and in case he succeed in such attempt, to present it for payment at that place (4). But if the drawee has never lived at the place of address, or has absconded, that circumstance will sufficiently excuse the holder from not making any farther inquiries after hím (5); and if he have left the country on any account, present[335]ment and demand of payment of his wife, or agent, at the place where he formerly resided, would be sufficient (e). 3dly. Time when presentment should be made. If at the time of presentment the drawee be dead, the holder should inquire after his personal representative, and present the bill to him (d); and in case there be no representative, should demand payment at the house of the deceased (e) 1 It is sufficient to require payment of the person on whom the bill is drawn, and it is unnecessary, in case of default of payment, to make any demand on the drawer, previously to an action against the indorser (f). The time when a bill or note &c. ought to be presented for payment, when it is payable at a certain time after it is drawn, as in the case of a bill payable after date, or after sight, or at usance, depends on the terms of the instrument itself (g); and when no (a) Collins. Butler, 2 Stra. Campb. 461.-12 East. 453, S. C. Collins v. Butler, 2 Stra. 1087. The maker of a note shut up his house before the note became due, and in an action against an indorser, the ques tion was, whether the plaintiff had shewn sufficient in proving that the house was shut up And Lee, C. J. thought not, but that he should have given in evidence that he enquired after the maker, or attempted to find him out.-Bayl. 95. But it seems sufficient to give or leave notice of nonpayment at the house of a party. See Goldsmith v. Bland, ante, 284; and 1 M. & S. 545, S. P. 1087.—Bayl. 95.-Bateman v. Joseph, 2 (b) Anonymous, Lord Raym. 743.-Bayl. 95. (c) Cromwell v. Hynson, 2 Esp. Rep. 511.-Phillips v. Astling, Taunt, 206. When not, see Cheek v. Roper, 5 Esp. Rep. 175.-Bayl. 95, 6. (d) Ante, 214.-Molloy, b. 2. c. 10. s. 34.—Poth. pl. 146.—Bayl. 95. (e) Poth. pl. 146.-Mar. 134.-Bayl. 95. (ƒ) Heylyn v. Adamson, 2 Burr. 669.-Hamilton v. Mackrell, Rep. Temp. Hardw. 322. (g) Bayl. 102, 3. (1) It has been recently decided in Massachusetts, that if the maker of a note die, and an administrator be appointed before it becomes due, no demand on the administrator is necessary to charge the indorser, so that notice of the death and non-payment be duly given to the indorser, unless the maturity of the note happens more than a year after the maker's death. This decision is grounded upon some supposed material difference between the situation of an administrator in Massachusetts and that of one in Eng land. Hall v. Burr, 12 Mass. Rep. 86, when pre made. time of payment is expressed, as in case of bills payable at sight 3dly. Time or on demand, the time when presentment for payment should be sentment made, depends on the local situation of the parties, and other cir- should be cumstances, necessarily varying in every particular case. It was once thought that the propriety of presentment for payment with respect to the time when it should be made, was, in all cases, a question for the determination of a jury, but the decisions of juries having been found to be very much at variance from each other (a), and consequently to have rendered the commercial law in that respect very uncertain, and the usage of merchants having been long established, it is now settled to be the province of the court [386] to determine the time when a presentment ought to be made (b). The circumstance of the holder having received a bill very near the time of its becoming due, constitutes no excuse for a neglect to present it for payment at maturity, for he might renounce it if he did not choose to undertake that duty, and send the bill back to the party from whom he received it; but if he keep it he is bound to use reasonable and due diligence in presenting it: and therefore where the plaintiff in Yorkshire, on the 26th of December, renewed a bill of exchange, payable in London, which became due on the 28th, and kept it in his own hands until the 29th, when he sent it by post to his bankers in Lincoln, who duly forwarded it to London for presentment, and the bill was dishonoured, it was held that the plaintiff had by his laches lost his remedy against the drawer and indorsers (c). When a bill, &c. is payable at usance, or at a certain time after date or sight, or after demand, it is not payable at the precise time mentioned in the bill, days of grace being allowed (c); but in the case of bills, &c. payable on demand, no such days are allowed. Before we enter into any particular inquiry, when bills, &c. payable at usance after date, after sight, after a particular event, at sight, or on demand, ought to be presented for payment, it may not be improper to make a few observations relative to the mode of com (a) Allen v. Dockwra, 1 Salk. 127.-Mainwaring v. Harrison, Stra. 508. -Coleman v. Sayer, id. 829.-Darrach v. Savage, 1 Show. 155. Phillips v. Phillips, 2 Freem. 247.-Crawley v. Crowther, id. 257.-Tindoll v. Brown, 1 T. R. 168, 9. - (b) Bayl. 103, 4, 123, ante, 290.-Darbishire v. Parker, 6 East. 11. 12.Parker v. Gordon, 7 East. 386.-Tindall v. Brown, 1 T. R. 168, 9, 170.Brown v. Collinson, Beawes, pl. 229.-Brown v. Harraden, 4 T. R. 148.Kyd. 45.-Molloy, b. 2. c. 10. acc.-Russell v. Langstaffe, Dougl. 515.— Muilman v. D'Eguino, 2 H. B. 568, 9. contra. (c) Anderson v. Beck, 16 East. 248. (d) Brown v. Harraden, 4 T. R. 141.-Leftly v. Mills, 4 T. R. 170.Poth. pl. 14, 15.-Mar. 76. Sdly. Time puting time in the case of bills in general, and some remarks with presentment respect to the days of grace and as to usances. when the should be made. When a bill is drawn at a place using one style, and payable on a day certain at a place using another, the time when the bill [* 337] becomes due must be calculated according to the style (a) of the place where it is payable; because the contract created by the making a bill of exchange is understood to have been made at that place, and consequently should be construed according to the laws of it (b). In other works it is laid down, that upon a bill drawn at a place using one style, and payable at a place using another, if the time is to be reckoned from the date it shall be computed according to the style of the place at which it was drawn, otherwise according to the style of the place where it is payable; and in the former case the date must be reduced or carried forward to the style of the place where the bill is payable and the time reckoned from thence (c). Thus on a bill dated the 1st of March, old style, and payable here one month after date, the time must be computed from the 19th February new style; and on a bill dated 19th February new style, and payable at St. Petersburgh one month after date, from the 1st March, old style (d). And although in some cases it has been considered, that when a computation is to be made from an act done, the day in which the act is done is to be included (e), the [338] law relating to bills of exchange is different; for the custom of merchants is settled that where a bill is payable at usance, or at so many days after sight, or from the date, the day of the date, or of the acceptance, must be excluded (f); and therefore, if a 募 (a) As to the old and new style, see Kyd. on Bills, 7, &c.-All places which we, in Great-Britain, are in the habit of negotiating bills, compute their time as we do, (except that Russia adheres to the old style) by years reckoned in sextiles, from the birth of our Saviour, and divided each into 12 months, and 365 (or in every fourth year 366) days.-Bayl. 112. (b) Poth. pl. 155.-Beawes, pl. 251.-Mar. 102, ante, 120, 1. acc. Kyd. 8. contra.-Old style, it is said, still prevails in Muscovey, Denmark, Holstein, Hamburgh, Utrecht, Gueldres, East Friesland, Geneva, and in all the protestant principalities in Germany, and the cantons of Switzerland.Beawes, pl. 258.-Kyd. 7, 8.—Mar. 56.—Bayl. 112.; see last note. (c) Bayl. 102, 3. (d) Bayl. 113. (e) Glassington v. Rawlins, 3 East. 407.-Cramlington v. Evans, 2 Ventr. 308, 310.-Castle v. Burditt, 3 T. R. 623.-Kyd. 6.; but see observations of Lord Ellenborough in Watson v. Pears, 2 Campb. 296, from which it ap pears that in many cases the day is to be excluded; see also Pugh v. Duke of Leeds, Cowp. 714.-Glassington v. Rawlins, 3 East, 407.-Lester v. Garland, 15 Ves. jun. 254. (f) Bellasis v. Hester, Lord Raym. 280.-Lutw. 1591. S. C.-Coleman v. Sayer, 1 Barn. B. R. 303.-Poth. pl. 13. 15.-Campbell v. French, 6 T. R. 212.-Beawes, pl. 252.-Bayl. 113.-Kyd. 6.-Lester v. Garland, 15 Ves. jun. 254.-acc. May v. Cooper, Fort. 376. contra. made. bill drawn payable ten days after sight, be presented on the 1st 3dly. Time day of a month, the ten days expire on the 11th, and the bill by when the presentment the addition of the days of grace when they are three in number, should be becomes due on the 14th (a). When a bill &c. is drawn payable at usance, or at a certain time after date, and it is not dated, the time when it is payable must be computed from the day it issued, exclusively thereof (b) (1). The days of grace which are allowed to the drawee, are so called because they were formerly merely gratuitous, and not to be claimed as a right by the person on whom it was incumbent to pay the bill, and were dependent on the inclination of the holder; they still retain the name of grace, though the custom of merchants recognized by law, has long reduced them to a certainty, and established a right in the acceptor to claim them, in all cases of bills or notes payable at usance, or after date, after sight, or after a certain event (c) (2). The number of these days varies according to the custom of the different countries(d). The *following is a list of [* 339 ] the days of grace established by the law merchant in different countries (e). (a) Kyd. 6. 7. (6) Hague v. French, 3 Bos. and Pul. 173.-Armitt v. Breame, Lord Raym. 1076.-Kyd. 7. ante, 77. (c) Brown v. Harraden, 4 T. 151, 2.-Terme de grace n'est terme de grace que de nom, parce que c'est humanitatis ratione qu'elle la accorde, et pour le distinguer de celui porte par la lettre; il est reellement terme de drat, puisque c'est la loi qui le donne.-Poth. pl. 187. See Coleman v. Sayer, Barnard Rep. B. R. 303.-Vin. Ab. tit. Bills of Exchange, b. 9.Harraden, 4 T. R. 151, where it is said to have been once decided, that days of grace are not allowable on inland bills. Brown v. (d) Beawes, 260. 1st ed. 449.-Bayl. 110. (e) Beawes, pl. 260.-Mar. 94.-Kyd. 9.—Bayl. 110. (1) The same rule is recognized in the United States. Henry v. Jones, 8 Mass. Rep. 453. Woodbridge v. Brigham, 12 Mass. Rep. 403. Jackson v. Richards, 2 Caines' Rep. 343. (2) The days of grace, as allowed in England, are generally allowed in the United States. At least no traces can be found of a contrary decision, except in the state of Massachusetts, where it is held, that no days of grace are allowable unless stipulated in the contract itself. Jones v. Fales, 4 Mass. Rep. 245. In New-York and in Pennsylvania, the days of grace are certaintainly allowed. Corp v. McComb, 1 John. Cas. 328. Jackson v. Richards, 2 Caines' Rep. 343. Lewis v. Burr, 2 Caines' Ca. in Err. 195. Bank of North America v. Petit, 4 Dal. Rep. 127. 5 Binn. Rep. 541. A bill drawn payable at five days after sight, and accepted on the first day of a month, is payable on the ninth of the same month, the day of the ac ceptance being excluded, and the three days of grace allowed, a demand on the eighth, and protest for non-payment is too early, and therefore void, Mitchellv. Degrand, 1 Mason's Rep. 176. 3dly. Time when the presentment should be made. England, Scotland, Wales, Ireland, Bergamo, and Vienna, 3 days. Leipsick, Naumberg, and Augsburgh, 4 do. 5 do. Venice, Amsterdam, Rotterdam, Middleburgh, Antwerp, 6 do. Naples, Dantzick, Koningsburg, and France, Hamburgh and Stockolm, Spain, Rome, 8 do. 10 do.(a) Genoa, Leghorn and Milan, and some other places in Italy, no fixed time. 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 eleventh 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 (c). 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 postday (d). (a) Poth. pl. 139. (b) Kyd. 9.-Bayl. 110.; but see Hamburgh ordinance, art. 16, 17, and quære, if not eleven days, see the next cases. (c) Goldsmith and another v. Shee, C. P. cor. Lord Eldon, 20th Dec 1799-Bayl. 110. n. 1. A bill for 5001. drawn on Katter, at Hamburgh, at three usances, was dated the 25th of 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 hol der 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 ex tend 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. (d) Goldsmith and another v. Bland and another, C. P. cor. Lord Eldon, 1st of March, 1800. A bill for 9981. 9s. 9d. drawn on Treviramus, of Bre men, but payable in Hamburgh, at three months, was dated the 15th of June, 1799; it was not presented or protested until the 26th September, which was not a post-day; another bill for 2611. 7s. 2d. addressed to Voeg, in Lubeck, payable in Hamburgh, at three months, was dated the 26th of June, 1799; it was not presented or protested until the 7th of October, which was not a post-day. In an action on these bills against the defend. ants, as indorsers, it was proved that it was optional in the holder of a bill at Hamburgh, whether he would present and protest it on the post-day, be |