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No fixed rule can be laid down beyond which a presentment will be unreasonable and insufficient to charge an indorser. In general, it should be made at such an hour that, having regard to the habits and usages of the community where the maker resides, he may reasonably be expected to be in a condition to attend to ordinary business. Various other circumstances are to be taken into consideration, such as the distance of the place of residence of the maker from the place where the note was dated, and where the holder at maturity was residing, and the season of the year when it fell due.(6) When a note or bill is payable at a bank, or at a banker's, it must be presented within business hours.(c) But if presented after that time, while any of the
payment would not have been made upon a demand at a reasonable hour. But there is nothing in this agreed statement to show that payment might not have been refused because the demand was made at such an hour that the maker did not choose to be disturbed, or because he could not then have access to funds prepared and deposited else. where for safety." In Farnsworth v. Allen, 4 Gray, 453, a note dated at Boston, falling due in August, was presented at 9 P. M. to the maker at his residence, ten miles from Boston, after he and his family had retired. The maker refused to pay. Held sufficient. See Lunt v. Adams, 17 Maine, 230, infra, p. 420, note f; Park v. Page, infra, p. 420, notc e.
(6) Bigelow, J., Farnsworth v. Allen, 4 Gray, 453, supra, note a. There are various dicta to the effect that a presentment after “the hour of rest” would be unavailing. Thus, in Barclay v. Bailey, 2 Camp. 527, Lord Ellenborough said: “If the presentment had been during the hours of rest, it would have been altogether unavailing." So Best, C J., Triggs v. Newnham, 10 J. B. Moore, 249. In Wilkins v. Jadis, 2 B. & Ad. 188, Lord Tenterden, C. J. said : A presentment at 12 o'clock at night, when a person has retired to rest, would be unreasonable." So Shepley, J., Dana v. Sawyer, 22 Maine,
In Cayuga Co. Bank v. Hunt, 2 Hill, 635, Cowen, J. said, that business hours "generally range through the whole day down to bedtime in the evening." But this cannot mean, that the mere fact that the maker had retired to bed in the evening before the demand would make it unreasonable. Thus, in Farnsworth v. Alten, 4 Gray, 453, supra, note a, Bigelow, J. said : “ It is quite immaterial that the maker and his family had retired for the night. The question whether a presentment is within reasonable time cannot be made to depend on the private and peculiar habits of the maker of the note, not known to the holder; but it must be determined by a consideration of the circumstances which, in ordinary cases, would render it seasonable or otherwise ”
(c) Parker o. Gordon, 7 East, 385, where a demand at 6 P. M. was held insufficient, the banker's hours ending at 5. Lord Ellenborough, C. J.: “If a party choose to take an acceptance, payable at an appointed place, it is to be presumed that he will inform himself of the proper time for receiving payment at such place, and he must apply accordingly; and if by going there out of due time the bill be not paid, it is his own fault, and he cannot proceed as upon a dishonor of it; at least not without going a step further, and presenting it for payment to the party himself; otherwise it is fishing for the dishonor of a bill made payable at a banker's, to present it there for payment at a time when it is known in the usual course of business that it cannot be paid.” So in
officers are present to give an answer at the time of the demand, it will be sufficient.(d) There is this difference, also, between a demand on the payor at his residence, and one at his place of business; in the former case it may be made at any hour of the day or evening when he may reasonably be expected to be able to attend to business ; (e) but if
Elford v. Teed, 1 Maule & S. 28, a presentment by a notary's clerk, between 6 and 7 P. M., was held insufficient, and that no presumption of a prior presentment within banking hours could be made from the fact that demand was made by the clerk. See Boston Bank 1. Hodges, 9 Pick. 420; Church v. Clark, 21 id. 310; cited supra, p. 414,
Where, by the usage of a bank at which a note is made payable, the payor is allowed until the expiration of banking hours for payment, a demand before that time is insufficient, unless the note is permitted to remain in the bank till the close of business hours. Planters' Bank v. Markham, 5 How. Miss. 397 ; Harrison v. Crowder, 6 Smedes & M. 464. In Whitaker n. Bank of England, 6 Car. & P. 700, 1 Cromp. M. & R. 744, an action against the bank, by a customer who had accepted a bill payable there, for not honoring the acceptance, it was proved that the bill was presented at 9 A. M., and left till 11 A. M., when payment was demanded. A demand was again made by the notary at 6 P. M., after banking hours. The court held that the note must be considered as continuing in a course of presentment from 9 to 11 ; that if the bank had funds at a reasonable time before 11, they were liable ; but that they were not liable to pay after banking hours, even though they had funds, and had a person stationed there who answered, “ Not sufficient effects.” A demand on a bank of a note in which the bank itself is the maker, made before 11 A. M., was held good. Staples v. Franklin Bank, 1 Met. 43, supra, p. 414, note s.
(d) Garnett v. Woodcock, 1 Stark. 475, 6 Maule & S. 44, where the bill was presented between 7 and 8 P. M., and a boy returned the answer, “No orders.” Lord Ellen, borough said : “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 the case and that of a presentment at a merchant's. 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 12 at night In general there are two presentments, 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 bank returned an answer by the mouth of its servant, and non constat but that he was stationed there for the express purpose.” Ilenry v. Lee, 2 Chitty, 124 ; Shepherd v. Chamberlain, 8 Gray, 225 ; Flint v. Rogers, 15 Maine, 67 ; Commercial Bank v. Hamer, 7 How. Miss. 148, where the notary, finding the front door shut, entered by the back door and demanded payment of the teller, who said that there were no funds ; Cohea v. Hunt, 2 Smedes & M. 227 ; Goodloe v. Godley, 13 id. 233; Bank of Syracuse o. Hollister, 17 N. Y. 48, where the paying teller, being a notary, presented the note to himself outside the bank doors, which were shut; Bank of Utica v. Smith, 18 johns. 230.
() In Barclay v. Bailey, 2 Camp. 527, presentment was made at the place desig. nated as the acceptor's residence, at 8 o'clock, P. M. An answer was given, that the acceptor had become bankrupt, and had removed. The defendant, the drawer, proved thai 'e had stationed a person at the house, to take up the bill, from 9 A. M. to 4 P. M. Held, that the demand was sufficient. Lord Ellenberough said: “I think this present
demand be made at the place of business, it must be made within the usual and ordinary business hours. (f) But no objection can be made to the demand at either place at any hour, if the payor had his agent there at that hour to make answer to the demand.(8)
ment sufficient. A common trader is different from a banker, and has not any peculiar hours for paying or receiving money. If the demand had been made during the hours of rest, it would have been altogether unavailing, but eight in the evening cannot be considered an unreasonable hour for demanding payment at the house of a private in. dividual who has accepted a bill.” So Wilkins v. Jadis. 2 B. & Ad 188. In Park o. Page, at Nisi Prius, before Parsons, C. J., in 1808, cited i Met. 48, a demand before 11 A M. was held good. See the cases cited supra, p. 418, note c.
(f) Shed o. Brett, 1 Pick. 401. This would only apply where there are regularly established business hours. See Dana v. Sawyer, 22 Maine, 244. In England it would seem that the hours within which demand may be made at any other place than the bank or a banker's may extend so late as 7 or 8 P. M. Thus, in Morgan o. Davison, i Stark. 114, Lord Ellenborough held that a demand at a counting-room between 6 and 7 P. M., when no one was present but a girl to take care of it, was sufficient; as the hour was not an improper one, and the holder might reasonably expect to find the party in his counting-house at that hour. In Triggs v. Newnham, i Car. & P. 631, 10 J. B. Moore, 249, a presentment of a bill payable at an attorney's office at 8 P. M. was held sufficient. In Lunt 0. Adams, 17 Maine, 230, demand was made on the maker at his store at & A. M. Held insufficient. Shepley, J. said: “ There may be little difficulty in towns and cities, where there are business on bank. ing hours, in deciding that a demand should be made during those hours. But in places where no particular hours are known for making and receiving payments there is more difficulty in determining what would be a reasonable hour for this purpose. It may often happen that the party having a payment to make would appropriate the carlier part of the day to obtain the means, either by collecting or by procuring a loan from a bank or from some person in a neighboring town. To establish a rule that would deprive him of that opportunity, and subject him to a suit, and that would ren. der him liable to have his business broken up while thus employed, might justly be regarded as unreasonable. The general rule being that the party has all the day to make his payment, that in relation to bills and notes should not be so varied as to prevent his having a fair opportunity to make arrangements and provide the means of payment before he is subjected to a suit. In this case the demand was made at an hour so early as to deprive him of that opportunity, and it was not, therefore, made at a reasonable hour.” In Cayuga Co. Bank o. Hunt, 2 Hill, 635, Cowen, J. said, that business hours, “except where the paper is due from the bank, generally range through the whole day down to bedtime in the evening.” But this, it is conceived, wonld vary according to the custom of each place.
(g) See the cases cited supra, note d. Where the payor and payee are willing, the one to make and the other to receive payment at any hour, and the payor is to acquire some right as against a third party on paying, such third party cannot object to the demand because it was made at an unreasonable hour. Thus, in Whitwell v. Brig. ham, 19 Pick. 117, the acceptor of a bill for the accommodation of the drawer, having paid the bill on the second day of grace, commenced a suit against the drawer at 6 u'clock, A. M.; and the suit was held not to be premature, on the ground that the payment might as well have been made at any previous hour of the third lar
It may here be remarked, that a notary's certificate of present ment, which does not state the time of day, carries with it the presumption that the demand was made at a proper hour, when nothing appears to the contrary.(h)
AT WHAT PLACE DEMAND SHOULD BE MADE.
The principles of law applicable to the question, where the demand should be made, are very different in case of a note or bill payable generally and one in which a place of payment is specified. We will first consider the rule with reference to notes in which no place is mentioned for payment.
We should say that, in general, a personal demand would be sufficient, if made on the maker or acceptor at any place where he may reasonably be expected to be in a condition to pay; and if made in any other place, — such, for instance, as the street, - it would usually be good, unless objection were made to payment because the place was an improper one, or some similar reason were given for the refusal.(i)
But a personal presentment is not necessary; (j) and in case such a one is not made, in the absence of circumstances which amount to an excuse for demand, that demand must be made where the maker resides, or at his usual and ordinary place of business.(k)
(h) Cayuga Co. Bank v. Hunt, 2 Hill, 635; De Wolf v. Murray, 2 Sandf. 166.
(i) Supra, p. 372, note z. In Baldwin v. Farnsworth, 1 Fairf. 414, presentment was made to both promisors of a joint and several note, made payable at their dwelling. houses, at the barn-yard of one of the makers. Held sufficient, as they "made no objection, and intimated no readiness to pay in the house."
(1) The contrary is stated in Duke of Norfolk o. Howard, 2 Show. 235, supra, p. 371, note y, but does not seem to have been followed. In Saunderson v. Judge, 2 H. Bl. 509, it is said that “it is not necessary that a demand should be personal, and it is sufficient if it be made at the house of the maker of the note.” So in M'Gruder o. Bank of Washington, 9 Wheat. 198, Johnson, J. said: “A demand on the maker is, in general, indispensable, and that demand must be made at his place of abode or place of business. That it should be strictly personal is not required. It is enough if it is at his place of abode, or generally at the place where he ought to be found.”
(k) In Sussex Bank d. Baldwin, 2 Harrison, 487, it was contended that the de. mand ought to have been at the maker's house ; but Dayton, J. said : “ It appears
It is clear that a demand at the place of business, without any at the place of abode, is sufficient,(l) and this ordinarily would be the safest and most proper place to present the note. It is said that a demand at the maker's house would be equally good,(m) but it may be doubted whether this is not subject to some qualification.
by the evidence that the office in question was the regular place of business of the maker; and I have no doubt where a person has an office, or known and settled place of business for the transaction of his monied concerns, whether he be a banker, broker, merchant, manufacturer, mechanic, or dealer in any other way, a presentment and demand at that place, as well as a presentment and demand at his residence, is good in law. It must not, however, be a place selected and used temporarily for the travsaction of some particular business, as settling up some old books or accounts merely, lut his regular and known place of business for the transaction of his monied concerns. The counting-room of a banker or merchant may be a proper place for a demand, though the manufactory or workshop would not. Yet if the manufacturer or mechanic have an office or known place of business for the purpose aforesaid, a good demand may be made there.” In West o. Brown, 6 Ohio State, 542, Bowen, J. remarked: “ It is said that the demand ought to have been made at the maker's family residence, and could not be made elsewhere, as he had no well-established business office. It
hat he occupied a room at Harding's, where he directed calls to be made, and where he received them. By his own acts and declarations he authorized the place to be known as his office for transacting business. He apprised the public that he could be found there, that word left there would find him. He claimed no other business location. He gave no directions or authority for calling on him for business purposes at his residence. His desire was to have an office for doing business, where he might conveniently and with certainty be found, and a selection of such place he accordingly made at Mr. Harding's, where he was sought by the notary public, but when applied for happened to be out. The object of the visit, however, was fully explained to those who were found in the office. We are satisfied that reasonable diligence in this case was used by the holder of the note to obtain payment from the maker, and that the claim that no demand of payment was made of him is not well founded."
(l) See the cases cited supra, note k; also Nott v. Beard, 16 La. 308.
(m) In Shamburgh v. Commagere, 10 Mart. La. 18, Porter, J. said: A man's resi. dence is the place where it is presumed he is to be found, and has funds to meet the demand, and there is no obligation on the holder to seek for him elsewhere." In Oak. ey v. Beauvais, 11 La. 487, Carleton, J. said, that demand must be made personally, or at the domicil of the maker, to bind an indorser. By "domicil,” it is presumed "place of residence" at the time of maturity was intended. In Deyraud v. Banks, 16 La. 461, the protest stated that the notary demanded payment at the domicil of the maker, and was answered that there were no funds there to pay it. Held sufficient evidence of a demand to charge the maker and indorser. So in Stivers v. Prentice, 3 B. Mon 461, it was held that a "presentment of a bill at the dwelling-house of the acceptor, in the absence of any proof of a special usage to the contrary, and he not being a banker, was sufficient; and especially as there was one there who answered for him, that no provision had been made for payment.” In Story on Bills, $$ 236, 351, Prom. Notes, $ 235, it is said, where the maker or acceptor lives in one town and does business in another, or where he resides in one part of a town and his place of business is another part, that the holder has his option at which to present, and that a demand at