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SECTION V. X
AT WHAT TIME DEMAND SHOULD BE MADE.
As to the time when demand should be made, the rule is, that in order to charge a drawer or indorser, it must be made on the day of the maturity of the note or bill.(c) If made before,(d)
(c) The general rule is, that it must be presented on the very day on which, by law, it becomes due; and that, unless the presentment be so made, it is a fatal objection to any right of recovery against the indorser. But although this is the general rule, it is not a universal one, and prevails only under the qualification, which is really a part of the rule itself, that there is no negligence or want of reasonable diligence in not making such presentment. The whole rule, therefore, more properly stated, is, that presentment must be on the day on which the bill becomes due, unless it is not in the power of the holder, by the use of reasonable diligence, so to present it.” Storrs, J., Windham Bank v. Norton, 22 Conn. 213. “A demand upon the maker of a note, in order to charge an indorser, must not only be made, but it must be satisfactorily proved to have been made, on the day when the note falls due, provided there be no circumstances dispensing with the necessity of such demand. .... The witness relied upon to prove the time of the demand, is unable to state it. The writing which he signed, without date, affords him no aid by which he could be enabled to fix the time." Whit. man, C. J., Robinson o. Blen, 20 Maine, 109. In this case a declaration by the holder to the indorser, that he had called on the maker the day the note became due, and that the maker refused, and the fact that the indorser did not deny it, were relied on as evidence to prove a demand at maturity. But the last facts were held to be no evidence, and the demand not satisfactorily proved.
(el) Brown v. Harraden, 4 T. R. 148; Wiffen o. Roberts, 1 Esp. 261 ; Henry v. Jones, 8 Mass. 453 ; Leavitt v. Simes, 3 N. H. 14; Howe v. Bradley, 19 Maine, 31; Jackson o. Newton, 8 Watts, 401 ; Farmers' Bank o. Duvall, 7 Gill & J. 78; Edgar o. Greer, 8 Clarke, Ia. 394. In Griffin v. Goff, 12 Johns. 423, Spencer, J. said : “ In the present case the demand of payment, being made at the house of the drawer before the note was payable, is as no demand : it was perfectly nugatory act; payment might have been demanded with as much propriety on the day the note was given.” One of the chief objections which have been urged against the usage spoken of above, as existing in Massachusetts with reference to demand, has been, that the notice is sent out prior to maturity. But the demand is not considered as made at the time when the notice is given. See the remarks of Shaw, C. J., cited supra, p. 369, note q, and the same eminent judge, speaking of this usage, says, in Mechanics’ Bank v. Merchants' Bank, 6 Met. 13: “Undoubtedly parties to negotiable notes may waive demand and notice, and, as a modification of that power, may agree to qualified modes of demand and notice; and a compliance on the part of the holders with such qualified modes will be sufficient to bind the indorsers. But we are not aware of a case in which, under such Agreement, express or tacit, in regard to the mode of presentment, demanıl, and notice, the time of payment can be accelerated, or, where any notice to indorsers is required, that such notice can be given before the actual dishonor of the note. Any agreement shich would accelerate the time of legal payment would be a change of the contract
or after (e) it is insufficient for that purpose, except where the den and is made subsequent to that time, under circumstances which the law recognizes as a valid excuse for a delay in making the demand.(f)
The liability of the maker or acceptor is unaffected by the question whether the demand was made after the day of maturity or not. A demand before the note or bill falls due is unavailing, (g) but a demand on either of them at any time subsequent to that date, provided it be within the period recognized by the Statute of Limitations, is sufficient.(1)
If a note is payable by instalments, there should be a demand of each instalment when it falls due.(i) But neglect of demand or notice on any one instalment would, as we think, discharge the indorser for that instalment, and only for that. If a note is payable by instalments, with the condition that, in default of payment of any one, the whole amount of the note shall become due, it would seem that, in order to hold the indorser for the amount of the bill unpaid, demand should be made for that amount, on default of payment of any one instalment; and it might be held, perhaps, that a neglect to demand any instalment would discharge an indorser, both for that and all subsequent ones; (j) we should have, however, some doubt as to this. If a note or bill is payable on demand, it is always mature, and may at any time be demanded. As between the maker and the holder, so far as maintaining an action on the note is concerned,
and must be made in such form and on such consideration as would be sufficient to constitute a substantive contract.”
(e) Nicholson o. Gouthit, 2 H. Bl. 609; Woodbridge v. Brigham, 12 Mass. 403 ; Piatt v. Eads, 1 Blackf. 81; Fulton Co. v. Wright, 12 La. 386 ; Grant v. Long, id. 402 ; McMurchey v. Robinson, 10 Ohio, 496 ; Eldridge v. Rogers, Minor, 392.
(f) As to what is a sufficient excuse, see infra, pp. 442-465.
(i) In Oridge v. Sherborne, 11 M. & W. 374, the defendant, an indorser of a note payable in seven instalments, in an action against him for the fourth instalment, objected that the presentment to the maker had been three days too late, grace having been allowed. It was held that such a note was within the Stat. 3 & 4 Anne, c. 9, and that the presentment was in time; consequently the indorser was held. The implication from this case is, that, if presentment had been made either before or after that instalment fell due, the indorser would have been discharged. It will be seen hereafter, that assumpsit will lie by an indorsee for each instalment as it falls die, while debt will not.
(j) See Carlon o. Kencaly, 12 M. & W. 139.
no other demand than serving the writ is necessary ;(k) nor need any demand be averred in the declaration ;(1) nor, if it be averred, need it be proved.(m) But if the note is payable on demand, it may be necessary for the holder, if he wishes to charge the maker with interest from any date prior to that of the writ, to prove a demand at that date.(n) So far as the Statute of Limitations is concerned, the cause of action is considered to have accrued at the time of the date of a bill or note on demand, and the statute commences to run from that time.(0)
The question as to the time witliin which a note or bill on demand must be presented, in order to affect other parties by its dishonor, depends upon the time when it is to be considered as overdue. Hence arise two classes of cases with reference to this point. One, where the note or bill is overdue when payment is demanded, and therefore the indorser or drawer is discharged. In this case, in order to determine the question as to the liability of an indorser or a drawer, an examination is necessary into the fact whether presentment is made at a time when the note or bill became mature, or subsequent to that time. (p)
The other class of cases relates to the question whether, at the time when the note is transferred to a third party by indorsement or otherwise, such a time has not elapsed from the date of the
(k) Rumball c. Ball, 10 Mod. 38; Burnham v. Allen, 1 Gray, 496. “As it respects the promisor himself, he is answerable immediately to the promisee or indorsee; and he may be sued the instant he has given his signature, even without a previous demand.” Parker, C. J, Field o. Nickerson, 13 Mass. 131 ; Dougerty v. Western Bank, 13 Ga. 287 ; Wool ward v. Drennan, 3 Brev. 189 : Cammer v. Harrison, 2 McCord, 246.
(1) Rumball v. Ball, 10 Mod. 38. “An action of debt upon a note to this effect : 1 acknowledge myself indebted, &c., which I promise to pay upon demand.' It was moved, in arrest of judgment, that, though upon a note acknowledging a debt it was not ne. cessary to allege a demand, yet, where it is part of the agreement, there a demand is necessary. But the court was of another opinion, for it is a debt in presenti, and the words. promise to pay’import no more than that I am ready to pay the money at any time, and shall not restrain or qualify the other words, this being no debt arising upon the performance of a certain condition, but a debt plainly precedent to the demand. Besides, supposing a demand necessary, the action itself, perhaps, is a demand.”
(m) Burnham v. Allen, 1 Gray, 496.
(0) Norton o. Ellam, 2 M. & W. 461; Woodward v. Drennan, 3 Brer. 189; Cain. nier v. Harrison, 2 McCord, 246; Smith v. Bythewood, Rice, 245 ; Ruff ». Bull, 7 Haris & J. 14. Infra, Vol. II.
(p) Field v. Nickerson, 13 Mass. 131, Parker, C. J.; and cases infra.
note that it must be considered as overdue, and consequently the inaker is entitled to equitable defences, of which he would be deprived had it not been transferred before it was due.(9)
The law with regard to reasonableness of time would appear to be the same in both classes of cases, and is so held in the United States; () at least, we are not aware of a case in this country where a distinction has been taken in that respect. But it has been held in England, that a note on demand is not to be considered as overdue so as to let in these equities by the mere lapse of time.(s)
(9) See supra, p. 264, note y.
(r) In Field r. Nickerson, 13 Mass. 131, the two classes were placed on the same ivoting loy Parker, C. J. So in Sice v. Cunningham, 1 Cowen, 397.
(s) There was an early case, Banks v. Colwell, cited 3 T. R. 81, where Buller, J. allowed the defendant to prove that the note was indorsed to the plaintiff a year and a half after date, and also to impeach the consideration ; and the plaintiff' was nonsuited. But in Barough o. White, 4 B. & C. 3.25, where the question was with regard to the adinis. sion of evidence tending to sustain a want of consideration, the note was payable with interest, and the length of time that had elapsed does not appear. Bayley, J., referring to the case of Banks v. Colwell, said: “We are not, however, acquainted with all the circumstances of that case; payment might have been demanded before the indorsement, and indeed it is stated that several payments had been made on account.” But these criticisms are hardly just. The case was clearly stated in the argument; was approved by Ashhurst, J., without any objection as to the fact that the note was not overdue; and as Buller, J. was himself on the bench at the time it was cited, he would surely have corrected it had it been misstated, and the case, having been decided only about nine months before, must have been fresh in his recollection. It will be seen also that Brown r. Davies, 3 T. R. 80, appears to have been decided on the authority of Banks v. Colwell. As to the fact " that payment might have been demanded before the indorsement,” that would have been immaterial had the note not been overdue, because it is stated that “no privity was brought home to the plaintiff”; as it is clear that a note indorsed over by the payee, after an insufficient demand, but before maturity, to a third party without knowledge of the fact. is a valid note in the hands of the latter. The same will apply to the fact, “that several payments had been made on count.” Bayley, J. laid some stress on the fact, that the note was payable with interest. Holroyd and Littledale, JJ. said nothing about this in the report in 4 B. & C. 325, but mention it in 6 Dow. & R. 379 In Brooks v. Mitchell, 9 M. & W. 15, the note, payable with interest, was dated Dec. 24, 1824, indorsed first in March 12, 1836, and again to the defendant on Jan. 16, 1838. This was an action of trover by the assignees of the first indorser, who contended, inasmuch as the note was overdue at the time of the first indorsement, that they could prove that the indorser had no right to transfer it. No interest had been paid or demanded for four years. But Parke, B. said: “I cannot assent to the arguments urged on behalf of the plaintiffs. If a promissory note, payable on demand, is, after a certain time, to be treated as orerdue, although payment has not been demanded, it is no longer a negotiable instrument. But a promissory note payable on demand is intended to be a continuing security." There do not appear to have been any decisions in England with reference to the first class of cases. A question has arisen with reference to drafts on a banker and gold.
The rule on this point would also seem to be the same as that with reference to presentment for acceptance of bills payable after sight,(() which we have already considered.(u) This rule is, that presentment must be made within a reasonable time after the indorsement in the case of bills, and after making in the case of notes, and that what constitutes such reasonableness of time cannot be determined by any fixed and exact rules, but must depend upon the particular circumstances of each case.(v) In all these cases, whether the question is one for the court or the jury to determine is perhaps unsettled ;(w) the prevailing doctrine being,
smith's notes, where they have been taken in payment, and the drawer has failed while the payee had them in his possession. This will be treated subsequently. See infra, chapters on Payment and Checks. Chitty, p. 252, 10th ed., London, says that they "must be presented within a reasonable time after they have been received ”; and again, p. 261: “ Instruments which are expressed to be payable on demand, as in the case of bankers' notes and checks, are payable instantly on.presentment, and such instruments must be presented for payment within a reasonable time after the receipt of them, usually the next day.” Byles, p. 123, says: “Bills and notes payable on demand, and checks, must be presented within a reasonable time"; - and on p. 161 : “ It is conceived that a common bill of exchange ought, if the parties live in the same place, to be presented the next day after the payce has received it.” This is hardly consistent with the remarks of the judges in the cases cited supra, who almost all speak of a note on de. inand as intended to be “a continuing security.” No cases are cited in support of the proposition, and those from which the opinion seems to have been formed are the cases of checks and banker's notes, where the drawer has failed, and the question has been, whether a party who received them in payment, or the party giving them as payment, should bear the loss ; which is obviously a different question.
(t) See Field o. Nickerson, 13 Mass. 131 ; Thurston o. M'Kown, 6 id. 428; Aymar v. Beers, 7 Cowen, 705 ; Brenzer o. Wightman, 7 Watts & S. 264.
(u) Supra, p. 338, note c.
(v) Field v. Nickerson, 13 Mass. 131 ; Sylvester o. Crapo, 15 Pick. 92 ; Ranger o. Cary, 1 Met. 369; Losee o. Dunkin, 7 Johns. 70; Vreeland v. Hyde, 2 Hall, 429; Bank of Utica v. Smedes, 3 Cowen, 662 ; Castle v. Candee, 16 Conn. 223; Lockwood o. Crawford, 18 id. 361; Emerson o. Crocker, 5 N. H. 159 ; Carlton o. Bailey, 7 Foster, 230; Cromwell 0. Arrott, 1 S. & R. 180; M'Kinney v Crawford, 8 id. 351 ; Brenzer o. Wightman, 7 Watts & S. 264 ; Martin v. Winslow, 2 Mason, 241. In Seaver o. Lincoln, 21 Pick. 267, Shaw, C. J. said : “ One of the most difficult questions presented for the decision of a court of law is, what shall be deemed a reasonable time within which to demand payment of the maker of a note payable on demand, in order to charge the indorser. It depends upon so many circumstances to determine what is reaconable time in a particular case, that one decision goes but little way in establishing a precedent for another.”
(w) In Field v. Nickerson, 13 Mass. 131, the question seems to have been decided by the jury. Parker, C. J.: “Was this demand made in a reasonable time? The jury have said, No; and they were perfectly justified in returning that answer.” In Manwaring v. Harrison, 1 Stra. 507, the case arose on a goldsmith's note, whether a payor or a payee should hear the loss. Pratt, C. J.“ told the jury that giving the note