42 Ill. 238, it was expressly decided that a certified check does not constitute payment. To the same effect are the decisions in Rounds v. Smith, 42 Ill. 245; Brown v. Leckie, 43 Ill. 497; Mutual Nat. Bank v. Rotge, 28 La. Ann. 933, 26 Am. Rep. 126; Andrews v. Bank, 9 Heisk. (Tenn.) 211, 24 Am. Rep. 300. The question received consideration in the recent case of Larsen v. Breene, 12 Colo. 480, 21 Pac. 498, and it was held that a certified check was not a payment. This general doctrine is asserted by Mr. Tiedeman, who says: "And the same rule applies although the check had been certified before its delivery to the payee or holder; the certification only having the effect in that case of increasing its currency by adding the liability of the bank to that of the drawer." Tiedeman Com. Paper, § 456. There was no substitution of one debtor for another, in this instance, and the contention of appellant's counsel that there was a novation cannot prevail. The delivery of the check was simply a conditional payment. The release of the original debtor was dependent upon the condition that the check should be honored on presentation. He still remained the debtor, for he was bound for the debt as long as the check remained unpaid. Culver v. Marks, 122 Ind. 554, 23 N. E. 1086, 7 L. R. A. 489, 17 Am. St. Rep. 377. Judgment affirmed. SECTION 3.-PRESENTMENT FOR PAYMENT I. DAY HART v. SMITH. (Supreme Court of Alabama, 1849. 15 Ala. 807, 50 Am. Dec. 161.) Error to the county court. The facts of this case are fully shown in the opinion of the court. Stone, for plaintiff in error. T. J. Judge, contra. 1. Bills payable at sight, being different from those payable on demand (Chit. [9th Ed.] 410), should be presented for acceptance. within a reasonable time, and before payment thereof be demanded. Chitty on Bills (10th Ed.) 274; Fernandez v. Lewis, 1 McCord (S. C.) 322. For (sight meaning acceptance) bills payable at or after sight do not become due until after they are accepted, or protested for nonacceptance. Brown v. Turner, 11 Ala. 752; Chitty on Bills (10th) Ed.) 272; Stephen's N. P. 875, and authorities there cited. And, after acceptance, it is now well settled that such bills are entitled to days of grace. Chitty on Bills (9th Ed.) marg. pp. 409, 410; Chit. on Bills (10th Ed.) marg. pp. 376, 377, and note T, on page 377; Bailey on Bills (5th Ed.) 98; Forbes on Bills, 142; Janson v. Thomas, B. R. Trinity Term, 24 Geo. III; Dixon v. Nuttall, 1 C., M. & R. 307; Dehers v. Harriot, 1 Show. 163; Coleman v. Sayer, 1 Barnard, 303; Viner's Ab. tit. "Bills Ex."; 3 Dougl. 421; Selwyn's N. P. (9th Ed.) 351. In the case at bar, then the presentment for payment was premature, and a nullity. 1 Mason, 176; Wiffen v. Roberts, 1 Espinasse, 262; Brown v. Harraden, 4 Term R. 148; Griffin v. Goff, 12 Johns. (N. Y.) 423; Savings Bank v. Bates, 8 Conn. 505; Piatt v. Eads, 1 Blackf. (Ind.) 87. The authorities cited by plaintiff in error, showing it unnecessary to protest an inland bill, to authorize a holder to recover, have no application. There is a difference, between protest and notice. DARGAN, J. This was an action of assumpsit, on a bill of exchange, drawn by the defendant, in favor of the plaintiff, on Desha & Smith, dated the 26th February, 1846, payable at sight. The only evidence introduced to charge the drawer was the bill, and protest, showing a demand of payment made of the drawees, on the 4th of March, 1816, and notice to the drawer. The court charged the jury that the plaintiff could not recover. A bill, payable on demand, or at any fixed time, need not be presented for acceptance; but a demand of payment, at the time the holder has the legal right to demand payment, is all that is necessary. And if the bill be not paid, the holder may protest it for nonpayment, and, on his giving due notice to the drawer and indorsers, their liability is fixed. Evans v. Bridges, 4 Port. 345; Bank of Washington v. Triplett, 1 Pet. 25, 7 L. Ed. 37; Townsley v. Sumrall, 2 Pet. 170. 7 L. Ed. 386; Chitty on Bills (10th Ed.) 272. But when the time of payment is uncertain and a presentation of the bill is necessary, in order to ascertain, and fix, the time of payment, as if the bill be payable at a number of days after sight, then the bill must be presented for acceptance before payment is demanded. Story on Bills, § 112, 227; Chitty on Bills (10th Ed.) 272; Bayley on Bills (5th Ed.) 217, 218. It is contended that a bill payable at sight is entitled to days of grace, and therefore it must be presented for acceptance before payment can be demanded. I am free to confess that my opinion, untrammeled by authority, would incline me to hold that a bill of exchange, payable at sight. is not entitled to days of grace, and that payment may be demanded on presenting the bill, which, if refused, would authorize the holder forthwith to have it protested for nonpayment, and, on giving notice to the drawer, to hold him liable. But the law seems to be settled otherwise. Judge Story, in his treatise on Bills, says "that days of grace are allowed on all bills, whether payable at a certain time after date, after sight, or even at sight; and although there has been some diversity of opinion whether bills payable at sight are entitled to days of grace, it is now settled by the decisions, both in England and America, that days of grace are allowable on such bills." Section 342, p. 429. To the same effect, see Chitty on Bills (10th Ed.) 376; Bayley on Bills (5th Ed.) 244, 245; Selwyn's N. P. (9th Ed.) 351; Coleman v. Sayre, 1 Barnard, 303; Dehers v. Harriet, 1 Show. 165; Stephen's N. P. 876. Under the influence of these authorities, I feel constrained to hold that a bill payable at sight is entitled to days of grace; consequently, a demand of payment made of the drawer, upon the first presentation of the bill to him, is insufficient to charge the drawer, for the bill is not then due. As there was no evidence of any previous presentation of the bill for acceptance, nor notice given of nonacceptance, the demand of payment was prematurely made, and was therefore a nullity. As the evidence fails to show a demand of payment on the day the bill was payable, the court correctly instructed the jury that the plaintiff could not recover. Let the judgment be affirmed. JEX v. TUREAUD. (Supreme Court of Louisiana, 1867. 19 La. Ann. 64.) ̧ ILSLEY, J. The administrator of the succession of the late Robert Many sues the defendant to recover from him as the indorser of the following described promissory notes, the several amounts thereof, with interest and costs: (1) A note for $452, payable on the 1-4 January, 1862. The demand is resisted by the defendant, who, besides pleading the general issue, denies all liability as the indorser of the notes declared on, for the following reasons, viz.: That the notes indorsed by him were not presented, and payment thereof demanded, at the time and place when and where they became due; that no diligence was shown by the plaintiff, or any previous. holder of the said notes, in presenting them for payment, or in having them protested at the time and place of their respective maturity; that the notes could and should have been protested before the period. at which the plaintiff states that protest was made, viz., on the 26th July, 1865. The court below rendered judgment in favor of the plaintiff for the amount of the two notes, 4 and 5, maturing in January, 1864, but dismissed his action for those which were payable in the years 1862 and 1863, and from this judgment the defendant has appealed. It is a settled rule of the commercial law that a demand should be made of the maker of a note on the very day on which by law it becomes due, and unless the demand is so made it is generally a fatal objection to any right of recovery against the indorser, although the maker himself may and will be liable on the note. This rule, although apparently harsh, and perhaps severe, in its practical operation, yet is, for the general purpose of business, highly useful to the commercial community by introducing promptness, fidelity, and exactness in the demand of payment. See Story. There are, however, exceptions to the rule: "Any inevitable accident, or irresistible force, or unforeseen occurrence, which could not be provided against, will constitute a sufficient excuse for nonpresentment, etc., at the maturity of the note." Such accident, irresistible force, or unforeseen occurrence must, however, be patent, real, positive, and, as a natural consequence, excuses derived from any such cause, vis major, as they arise with, and are dependent on, such cause, must also disappear with it. The special grounds relied on by the plaintiff to bring him within the exception to the general rule in regard to the demand, etc., are: (1) The presence of political circumstances and civil war, amounting to a virtual interruption of all ordinary negotiations of trade and intercourse with the state of Louisiana and the parish of St. James. (2) The state of war between the northern and southern sections of the United States. (3) The occupation of the state of Louisiana and the parish of St. James by Confederate forces, which suspended commercial intercourse and access to said parish and state. (4) Public and positive interdictions and prohibitions of the United States and blockades, which obstructed and suspended commercial intercourse with the said state and parish. (5) The absence of the late Robert Many from the state of Louisiana, and his sojourn, detention, illness, and death in the city of New York. (6) The absence of civil, judicial, and ministerial officers, and the closing of their offices and of the courts of justice in the parish of St. James. (7) The succession of Robert Many being unrepresented until the appointment of the petitioner as administrator, and his qualifications as such on the 26th July, 1865. As regards the notes which matured in January of the year 1862 and 1863, we can perceive no reason why the judgment of the lower court, in regard to them, should be disturbed; for, supposing that Robert Many had these notes with him on his arrival in New York, in June, 1861, there was, from the time of the capture of New Orleans by the United States army in April, 1862, open, free, and uninterrupted communication by regular public conveyance between New York, New Orleans, and the parish of St. James; and as all that part of Louisiana, in which are situated New Orleans and St. James, were then and and continued to be "occupied and controlled by the forces of the United States," etc., commercial intercourse between New York, New Orleans, and St. James parish was by the proclamation of the President of the United States of July 1, 1861, not deemed unlawful, and did not become so until it was so declared by the proclamation of 31st March, 1863. The office of recorder of the parish of St. James was filled until the 15th June, 1862. It was again in operation in December of that year, and was not afterwards vacated. There was then ample time to make demand of payment of the notes, which became due in January and March, 1862, and in January, 1863, as Robert Many died only on the 28th August of 1863, retaining all his mental vigor until the time of his demise. It was not necessary that the demand should have been made, nor notice of demand and nonpayment given, by a notary. These requisites might have been performed and proved by any person lawfully in possession of the notes, and competent to testify as a witness. See |