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of maturity. But all the authorities do not seem to adopt this view.(n)
4. Of the Acts of a Party which affect his Right to require
Demand of Payment. The second class of excuses, which we will now consider, arise from the acts, words, or position of a party, by means of which he is not entitled to the demand, of the want of which he would avail himself. If the drawer of a bill had no effects in the hands of the drawee, and had no legitimate expectations, grounded upon some definite arrangement, that the bill would be paid, we have seen that he has no right to require a demand of it.(0)
plaintiffs were concerned, an unavoidable accident. It happened, not in consequence of any delay of the plaintiffs in putting the draft into the post office at so late a period that it could not, or probably would not, reach its destination in due season, but merely in consequence of the act of the official to whom it was properly confided, done after it was properly in his charge by the plaintiff's for transmission. The accident, moreover, was of a very peculiar and extraordinary character, and quite different from those which are ordinarily incident to that mode of transmission, and against which it would be extremely difficult, if not impossible, to guard. It would have been equally liable to occur at any time, when the draft should have been placed in the post-office. It was not owing in any sense to the fault of the plaintiffs, but solely to that of the postmaster. Under these circumstances, we do not feel authorized to impute any blame or negligence to the plaintiffs. We are therefore of opinion that judgment should be rendered for the plaintiff's.”
(n) In Schofield v. Bayard, 3 Wend. 488, the holder of a bill payable in London sent it hy mistake to Liverpool. His agent at the latter place immediately sent it back to the holder; but by some oversight of the clerks in the post-office, it did not get to the holder in time for him to forward it to London, although had it not been for the detention, there would have been sufficient time to have had a regular demand made. Sarage, C. J. said: “ This case presents no impossibility, if due diligence had been used. The plaintiffs should not have sent the bill to Liverpool at all. It is true that, after the letter containing it had been left at Liverpool, it could not have reached London in season; but it was the fault of the plaintiffs to have parted with the bill in the manner they did. Instead of sending it to Liverpool, they should have sent it to London, and then it would have been in season, and probably would have been paid. I am of opinion that, by the law merchant, payment should have been demanded in London on the 12th of November, and that not having been done, and there being no impossibility to prevent it but what is attributable to the want of due diligence on the part of the hoider, the defendants are legally discharged, and are entitled to judgment." This case presents a somewhat different statement of facts from that in Windham Bank v. Norton, 22 Conn. 213, supra, p. 461, note m, and may perhaps be reconciled with it, on the ground that the failure to present was connected, in its inception, with a mistake of the plaintiffs themselves.
(o) Terry v. Parker, 6 A. & E. 502, 1 Nev. & P. 752. Lord Denman, C. J. said :
Many cases establish the fact that notice of dishonor need not be given to the drawer In such a case; and the reason assigned is, because he is in no respect prejudiced by
But the parties subsequent to the drawer have still that right, and are discharged by non-demand, although he is not.(p)
The reason why the drawer has no such right is twofold. In the first place, he had no right to draw and put into circulation such a bill; and, secondly, he can have no action or clain against the acceptor, for whom he is a surety, for not paying, because the acceptor was under no obligation to pay, and can suffer no injury which does not spring from his own fault. The test must always be in such a case, not whether the drawer had funds in the hands of the drawee, nor what particular arrangement he had made, but whether, in case of non-acceptance or non-payment, he can maintain an action against the drawee.
As by far the greater number of cases on this subject and its rules and their qualifications have arisen with respect to excuse for want of due notice, it has been thought best to postpone a further discussion of the topic until we treat of Notice. We shall also consider under that head the question as to what effect the making or indorsing a note for the accommodation of any party thereto has on the subject of excuse.
It is obvious that any one may waive his right to presentment and demand. This is sometimes done expressly, by an indorser writing over his name, “I waive demand,” or other similar words.(9) There may be also a constructive waiver arising, by implication, from the acts or words of any particular indorser. This subject of waiver of demand is also so intimately connected with waiver of notice, that we prefer to consider them both together in the chapter on Notice.(r)
If an indorser belongs to two firms, one of which has signed and the other indorsed the paper, it has been held that a demand is still necessary.(s)
want of such notice, having no remedy against any other party on the bill. This reason equally applies to want of presentment for payment, since if the bill were presented, and paid by the drawee, the drawer would become indebted to him in the amount, instead of being indebted to the holder of the bill, and would be in no way benefited by such presentment and payment.” Dollfus v. Frosch, i Denio, 367; Commercial Bank v. Hughes, 17 Wend. 94; Aborn v. Bosworth, I R. I. 401; Tarver o. Nance, 5 Ala. 712; Foard v. Womack, 2 id. 368. This subject will be further considered under Nu. lice, infru.
(p) Infra, chapter on Notice. (9) Woodman v Thurston, 8 Cush. 157. (r) Infra, chapter on Notice. (8) Dwight o. Scovil, 2 Conn. 654. Swift, C. J. said: “The circumstance that one
With respect to the pleading in case of excuse, it will be seen that an averment of presentment and demand of payment on a promisor is supported by proof of circumstances amounting to an excuse thereof.(0)
We are unwilling to close this topic of excuse for nonpresentment without remarking, that the rule requiring presentment is so stringent, and rests upon reasons which require so rigid an adherence to the rule, that it is not safe or prudent to rely upon any of these excuses, except, perhaps, an express waiver in writing on the paper itself.
A question might be raised in regard to the operation of a waiver beyond the person who makes it. If a payee indorses a note, and writes over his name, "I waive demand," he certainly cannot complain if no demand is made. But are all subsequent indorsers affected and bound by his waiver ? So, if there be many indorsers, and the fourth indorser makes an express waiver of demand, the three before him are certainly unaffected by this waiver ; but are those who follow equally unaffected ? It might be said, that whoever indorses after a written waiver is made must be considered as assenting thereto, if he expresses no dissent. But, in the absence of authoritative decisions, we should say, on the general theory of waiver, that it cannot affect the rights of any person other than the party who makes it.
It should also be said, that although the whole law of negotiable paper rests upon the fact that such paper is intended to be an instrument of mercantile business, and is adapted to this purpose by this system of law, it is certain that the rules are the same, and equally enforced, whether the parties affected by them are merchants or not.
of the defendants was a member of both the companies who made and indorsed the note can make no difference; for each company is to be considered as distinct persons, with different funds and liabilities, and there is the same reason for presentment and demand as if the companies were wholly different. If the companies should reside in different and distant places, the drawing of bills on each other might be convenient in the course of their business; but, on the principle contended for, the company drawing the bill might be subjected to pay it, because one of the partners belonged to both companies when the company on whom it was drawn was solvent, and would have paid the bill if it had been presented.”
(1) Infra, chapter on Pleading.
Pol. I.-2 E
OF NOTICE OF DISHONOR.
WHILE the duties of presentment and of notice of dishonor are distinct, they are so far similar that much that was said of presentment, as to the persons by whom and to whom, the form and manner, and excuses for the non-performance of the duty, are applicable to both topics, yet there are important differences between them; and it seems better to treat of both topics independently, even at the risk of some actual and more apparent repetition.
We shall examine, first, the form of the notice ; secondly, the manner in which it should be given ; thirdly, the place to which it should be sent; fourthly, to whom ; fifthly, by whom ; and sixthly, when it should be given. Excuses for want of notice will be considered in the next chapter.
OF THE FORM OF THE NOTICE.
This is so far immaterial that neither the law nor mercantile usage prescribes any exact form or phraseology to be used invariably, or even generally.(u) But there are certain essential requisites which the notice must contain ; and these must be fully stated, accurately and intelligibly. In theory, a notice should describe the bill or note in such a way that it could not
(u) Thompson, J., Bank of Alexandria v. Swann, 9 Pet. 33. In Hartley v. Case, 4 B. & C. 339, the rule is stated by Lord Tenterden, C. J. as follows: "There is no precise form of words necessary to be used in giving notice of the dishonor of a bill of exchange, but the language used must be such as to convey notice to the party what the bill is, and that payment of it has been refused by the acceptor.” So Fletcher, J., Housatonic Bank v. Laflin, 5 Cush. 546 ; Kilgore v. Bulkley, 14 Conn. 362; Reedy v. Seixas, 2 Johns. Cas. 337; Spann v. Baltzell, 1 Fla. 301 ; Brewster 0. Arncad, I Wisc 264.
be mistaken; should state the presentment, and the dishonor of it; should be dated ; should say that the party to whom the
1 notice is sent is looked to for payment; should state where the note is, that the party notified may find it; and should state who the holder is, and who gives the notice, or at whose request it is given. Such at least are the elements of a full, regular, and perfectly safe notice. And formerly courts have looked upon all of these as so far essential, that the entire failure of any one of them would go far to vitiate the notice.
Perhaps this early strictness was excessive ; but it is at least quite as certain that the laxity shown in some modern cases, in which far too much regard is paid to the seeming equity of the particular case, las tended to create much difficulty in determining what is now absolutely essential to the sufficiency of a notice. In some case or other almost every one of the elements above enumerated has been disregarded ; and there seems to be a general consent, especially of the American courts, that some of these are quite unnecessary. In a brief but very excellent treatise on Bills,(v) published in England, it is said : “ All that is necessary is to apprise the party liable of the dishonor of the bill in question, and to intimate that he is expected to pay it.” But the weight of American authority is against the express requirement of the statement of demand, and it would therefore follow that nothing more is necessary than a statement that the bill or note is dishonored. But this seems to us to be going somewhat too far.
All the cases agree that the dishonor of the bill or note must be clearly stated ; indeed, it is difficult to see that the notice could be effectual for any purpose whatever, if this were omitted.(w) The rule, as stated in some of the English cases, is, that it ought to appear on the face of the instrument“ in express terms, or by necessary implication,” that the bill or note was presented and dishonored.(2) But this method of laying down the rule has
(0) Byles on Bills, 213. In Chitty on Bills, 10th Lond. ed., 299, it is stated tha. "there are two requisites which are indispensable to a good notice, namely, a description of the bill and an intimation of its being dishonored.”
(u) Solarte v. Palmer, 7 Bing. 530, 1 Cromp. & J. 417, 1 Tyrw. 371. This case was 'aken from the Exchequer Chamber to the House of Lords, and confirmed there. I Bing. N. C. 194, 8 Bligh, N. S. 874, 2 Clark & F. 93 ; Gilbert 0. Dennis, 3 Met. 195. Sce Lockwood v Crawford, 18 Conn. 361.
(r) Tindal, C. J., Solarte o Palmer, 7 Bing. 530, 1 Cromp. & J. 417, 1 Tyrw. 371. The role is so stated by Park, J. in this case, as decided by the House of Lords in