sentment is neces

ceptor, as a note is the original contract of the maker'; 1st. When preand as it is admitted that the drawee may make a sary. qualified or conditional acceptance, and thus narrow the liability which a general acceptance would create, it is difficult to say that he may not qualify his contract and liability as to the place of payment, and whether this be done in the body of the bill or by memorandum at the foot, yet if it were intended to qualify the contract it should have that operation without regard to the arrangement of the words. In practice it is the invariable course amongst bankers and merchants to present bills accepted payable at a particular place, at such place. At all events, in the present uncertainty in the law, it is advisable to present an instrument for payment according to the terms of the acceptance, and in declaring against the acceptor of a bill, or maker of a note, thus payable at a particular place, in one count to aver the presentment there, and in another count to describe the instrument as accepted payable generally?.

If however, a party receive a bill accepted, at the foot payable at a bankers, or a particular place, it is on the contrary the case is frequently otherwise. In one of the largest branches of our commerce, that with the West India islands, the acceptor is universally in advance. I put the question if the acceptance had contained the words (and not elsewhere) whether the acceptor would be liable any where else, and the counsel did not deny the limitation; if so, the question is, whether the words "accepted payable at," do not constitute a contract, and whether they are not equivalent to express words of exclusion; and I think they are. party need not have received from the acceptor living at Bath ą limited contract of acceptance, but he had thought fit so to do, and he must perform his condition. Judgment for the defendant. But Gibbs, C. J. appears in other cases to have decided otherwise; see note 1, 327, and Richards u. Lord Milsingtown, 1 Holt, 364, and ante, 325, note 1.

1

2

Bayl. 185. p. 1.

The

In Mutford v. Walcot, Ld. Raym, 575. Holt, C. J. said, "if a bill be payable at Loudon, and the person on whom it is drawn accepts it, but names no house where he will pay it, the party that has the bill is not bound to be satisfied with this acceptance."-See also Bayley, 86. It should seem therefore that there is no objection to the holder's receiving a special acceptance stating the place of payment. But in Head v. Sewell, 1 Holt, C. N. P. 335. Gibbs, Č. J. seems to have been of opinion that a special acceptance payable at a particular place, does not render it necessary to prove a presentment there.

Bayl. 185

sentment is necessary.

1st. When pre- incumbent upon him, in order to charge the drawer or indorsers, to present it at the appointed place in the usual banking hours, and if he present it after such hours without effect, it is no proof of dishonour of the bill, so as to charge the drawer or indorser.

sly. By and to whom, and where

the presentment

should be made.

In case of a foreign bill, where the course of exchange has altered, the acceptor will only be liable to pay according to the rate of it, when the bill became due; and if the acceptor undertook by his acceptance to pay within a certain period after demand, he may insist on the want of presentment 3. A person who has guaranteed the due payment of a bill may be released from responsibility by the neglect of the holder duly to present it for payment, if he can shew that he was thereby prejudiced 4.

Presentment for payment, when necessary, must be made by the holder of the bill, &c. or an agent, competent to give a legal receipt for the money, to the person in general on whom it is drawn; and a person in possession of a bill payable to his own order, is a holder for this purpose, though it was once thought he had only an authority to indorse 7. It is not necessary that the demand should be personal, it being sufficient if it be made at the house of the acceptor; and it is

'Parker v. Gordon, 7 East. 385. post, as time of day.-Ambrose v. Hopwood, 2 Taunt. 61.-2 Campb. 550.

Poth. pl. 174.

3 The Duke of Norfolk v. Howard, 2 Show. 235.

4 Phillips . Astling, 2 Taunt. 206.—Warrington v. Furbor, 8 East. 242. ante, 264, 5.

5 Per Lord Kenyon, in Coore v. Callaway, 1 Esp. Rep. 115.

6

Poth. pl. 129.

7

v. Ormston, 10 Mod. 286.-Smith v. M'Clure, 5 East. 476, et ante, 148, 9.

8 Brown v. M'Dermot, 5 Esp. Rep. 265, 6.-Cromwell v. Hynson, 2 Esp. Rep. 512, acc. Sed vide Duke of Norfolk v. Howard, 2 Show. 235.

Brown . M'Dermot, 5 Esp. Rep. 265. Indorsee against indorser, it was held in this case to be sufficient to demand payment at the usual place of residence of the acceptor, and if it is not then paid it is sufficient to entitle the party to proceed against the indorser. The plaintiff's counsel called a witness, who proved that he carried the bill to the house described as the place where Smithson the acceptor lived, but that there were no orders left, and the bill was not paid, but it appeared that the witness never saw the acceptor. Garrow,

whom, and where,

the presentment

should be made.

the same thing in effect, if it be made at the place 2dly. By and to appointed by him for payment', or in some cases of his agent who has been used to pay money for him 2; and if a banker's note be made payable at Tunbridge, and also at London, the holder has a right to present it at either place, and if payment be refused at the more distant place, London, it is no defence to prove, that if payment had been demanded at the nearer place, Tunbridge, the note would have been paid 3.

When a bill is made, or accepted, payable at a banker's, or at any particular place, or by a particular person not party to the instrument, in order to charge the drawer and indorsers, the presentment for and demand of payment should be made at such place, or on such person; and in default thereof, the drawer and indorser, and other parties transferring the bill, would in general be discharged from their obligations. If such presentment be made, and payment be refused, though in general notice must be given, yet it will be unnecessary to make another presentment to the acceptor in person, for the contract and undertaking that there should be cash, and that the bill should be paid there, is brokens; and though the person, at whose house the instrument is made payable, may not be a party to it, and consequently not personally liable; yet an answer by him, or at his house, as to the pay

for the defendant, objected to the evidence, and that the plaintiff should be called, first, on the ground that the promise to pay was not. made to the plaintiff, the indorsee himself, which he contended to be necessary; and secondly, that the hand-writing of the acceptor should be proved, and an actual demand on him. Lord Ellenborough, in summing up, told the jury, that it was necessary to prove a demand of the bill and non-payment by him; but that if a bill was payable at a certain house it was sufficient to demand the money there: That had been done here, for it was the duty of the drawee of a bill to leave provision for the payment of it. Verdict for the plaintiff.

Saunderson v. Judge, 2 Hen. Bla. 509.

The Governor and Company of the Bank of England v. Newman, 12 Mod. 241.-Phillips v. Astling, 2 Taunt. 206.-Bayl. 95, 6. Beeching v. Gower, 1 Holt, C. N. P. 313.

*Saunderson v. Judge, 2 Hen. Bla. 309.-Parker v. Gordon, 7 East. 386. ante, 332.

'Mar. 106.-Saunderson v. Judge, 2 Hen. Bla. 509.-Parker v. Gordon, 7 East. 385.-Com. Dig. tit. Merchant, F. 7.

whom, and where,

should be made.

2dly. By and to ment or non-payment of it is sufficient. In the spirit the presentment of this rule it has been decided, that if the person at whose house the bill, &c. is made payable, be himself the holder of it, it is a sufficient demand of payment for him to inspect his books, and sufficient evidence of a refusal, to find upon such inspection, that he had no effect in his hands'; and where a bill or cheque is payable at a banker's, a presentment to their clerk at the clearing-house is sufficient 3.

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 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. 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 further inquiries after him ; and if he have left the country on any account, presentment and demand

Stedman v. Gooch, 1 Esp. Rep. 4.

2 Saunderson v. Judge, 2 Hen. Bla. 509.-Bayl. 96.

3 Reynolds v. Chettle, 2 Campb. 596.-Robson v. Bennett, 2 Taunt.

388.

Robson and Waugh v. Bennett and another, 2 Taunt. 388. In this case it was established, that by the practice of the London bankers, if one banker who holds a check drawn on another banker, presents it after four o'clock it is not then paid, but a mark is put on it to shew that the drawer has assets, and that it will be paid; and checks so marked have a priority, and are exchanged or paid the next day at noon, at the clearing-house; held, that a check presented after four and so marked, and carried to the clearing-house the next day, but not paid, no clerk from the drawee's house attending, need not be presented for payment at the banking-house of the drawce, and that such a marking under this practice amounts to an acceptance, payable next day at the clearing-house.

4 Collins v. Butler, 2 Stra. 1087.-Bayl. 95.-Bateman v. Joseph, 2 Campb. 461.-12 East. 433, S. C.

Collins v. Butler, 2 Stra. 1087. The maker of a note shut up his house before the note became duc, and in an action against an indorser, the question 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 non-payment at the house of a party. See Goldsmith v. Bland, ante, 284; and I M. & S. 545, S. P. 5 Anonymous, Lord Raym. 743.-Bay1. 95.

of payment of his wife, or agent, at the place where 2dly. By and to he formerly resided, would be sufficient '.

2

If at the time of presentment, the drawee be dead, the holder should inquire after his personal representative, and present the bill to him ; and in case there be no representative, should demand payment at the house of the deceased 3.

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. The time when a bill or note, &c. ought to be prosented 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; and when no time of payment is expressed, as in case of bills payable at sight, or on demand, the time when presentment for payment should be made, depends on the local situation of the parties, and other circumstances, necessarily varying in every particular case. It was once thought, that the propriety of a 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, and consequently to have rendered the commercial law in that respect very uncertain, and the usage of merchants having been long since established, it is now settled to

Cromwell v. Hynson, 2 Esp. Rep. 511.-Phillips v. Astling, 2 Taunt. 206. When not, see Cheek v. Roper, 5 Esp. Rep. 175.— Bayl. 95, 6.

2

Ante, 214.-Molloy, b. 2. c. 10. s. 34.-Poth. pl. 146.—Bayl. 95. 3 Poth. pl. 146.-Mar. 134.--Bayl. 95.

Heylyn. Adamson, 2 Burr. 669.-Hamilton v. Mackrell, Rep. Temp. Hardw. 322.

Bayl. 102, 3.

Allen v. Dockwra, 1 Salk. 127.-Mainwaring v. Harrison, Stra. 508.-Coleman v. Sayer, id. 829.-Darrach v. Savage, 1 Show. 155. Phillips. Phillips, 2 Freem. 247.-Crawley v. Crowther, id. 257.Tindall v. Brown, 1 T. R. 168, 9.

whom, and where, the presentment should be made.

sdly. Time when a bill, &c. should

be presented for

payment.