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At common law all negotiable paper payable at a time cer tain is entitled to grace, which here means three days' delay of payment, unless it be expressly stated and agreed that there shall be no grace; and a presentment for payment before the last day of grace is premature, the note not being due until then. If the last day of grace falls on Sunday, or on a legal holiday, the note is due on the Saturday, or other day before the holiday. But if there be no grace, and the note falls due on a Sunday, or other holiday, it is not payable until the next day. At the close of the chapter we give an abstract of the laws of all the States concerning days of grace and holidays.
Generally, if a bill or note be payable in or after a certain number of days from date, sight, or demand, in counting these wlays, the day of date, sight, or demand is excluded, and the slay on which it falls due included. And the law would supply the word “from," etc., if the word were not used. Thus, a note dated January 1, and payable in “twenty days,” would be held payable in twenty days (and three days' grace) after the day of the date ; that is, on the 24th. If a note is made payable in one or more months, this means calendar months, whether shorter or longer. If made on the 13th of December, and payable in two months, it is payable on the 13th of February and grace, that is, on the 16th. But if so many days are named, they must be counted, whether they are more or less than a month. Thus, if the above note were payable in sixty days, it would be due on che rith and grace, or on the 14th of February. If dated 13th January, and payable in sixty days, it would be due on the 14th of March, with grace, or on the 17th.
Although payment must be demanded promptly, that is, on the day on which it is due, it need not be done instantly; a holder has all the business-part of the day in which the bill or note falls due to make his demand in.
Bills and notes payable on demand should be presented for payment within a reasonable time. If said to be “on interest," this strengthens the indication that they were intended to remain for a time unpaid and undemanded. But to hold indorsers, they should still be presented within whatever time circumstances may make a reasonable time ; and this is such a time as the Interests and safety of all concerned may require; and it may be a few days, or even one or two weeks. A bill or note in which no time of payment is expressed is held to be payable on demand. And evidence to prove it otherwise is inadmissible.
The holder of a check should present it at once; for the drawer has a right to expect that he will; it should, therefore, be presented, or forwarded for presentment, in the course of the day following that in which it was received, or, upon failure of the bank, the holder will lose the remedy he would otherwise have had against the person from whom he receives it. If the drawer of the check had no funds, he is liable always.
Every demand of payment should be made at the proper place, which is either the place of residence or of business of the payer, and within the proper hours of business. If made at a bank after hours of business, if the officers are there, and refuse payment for want of funds, the demand is sufficient.
A note payable at a particular place should be demanded at that place; and a bill drawn payable at a particular place should he demanded there, in order to charge the drawer of a bill, and the indorsers of a bill or note. But in this country an action may be maintained against the maker or acceptor without such demand ; but the defendant may discharge himself of damages and costs beyond the amount of the paper, by showing that he was ready at that place with funds. If a note is payable at any of several different places, presentment at any one of them wi.) be sufficient. If a bill which is drawn payable generally, be accepted payable at a particular place, the holder may and should so far regard this as non-acceptance, that he should protest and give notice. But if this limited acceptance is assented to and received, it must be complied with by the holder, and the bill must be presented for payment at that place, or the drawer and indorsers are discharged.
If payable at a banker's, or at the house or counting-room of any person, and such banker or person becomes the owner at maturity, this is demand enough ; and if there are no funds depcsited with him for the payment, this is refusal enough. If any house be designated, a presentment to any person there, or at the door if the house be shut up, is enough.
If this direction be not in the body of the note, but added at the close, or elsewhere, as a memorandum, it is not part of the contract, and should not be attended to.
If the payer has changed his residence, he should be sought for with due diligence; and, if he has absconded, it is better to make the demand at his last place of residence or business.
Where a bill or note is not presented for payment, or not presented at the time, or to the person, or in the place, or in the way, required by law, all parties but the acceptor or maker are discharged, for the reasons before stated.
5. OF PROTEST AND NOTICE.— If a bill of exchange be not accepted when properly presented for that purpose, or if a bill or note, when properly presented for payment, be not paid, the holder has a further duty to perform to all who are responsible for payment. In case of non-payment of a foreign bill, there should be a regular protest by a public notary; but this is not strictly necessary in the case of an inland bill, or a promissory note, whether foreign or inland. But in practice, all bills if not accepted, and all bills and notes if unpaid, are protested. By a foreign bill is meant a bill drawn in one State or country, and payable in another. But notice of non-payment should be given to all antecedent parties, equally, and in the same way, in the case of both bills and notes.
The demand and protest must be made according to the laws of the place where the bill is payable. It should be made by a notary-public, who should present the bill himself; but, if there be no notary-public in that place or within reasonable reach, it may be made by any respectable inhabitant in the presence of witnesses.
The protest should be noted on the day of demand and refusal; and may be filled up afterwards, even so late as at the trial.
The loss of a bill is not a sufficient excuse for not protesting it. But a subsequent promise to pay by a drawer or indorser, if made with knowledge of the facts, is held to imply, or be equal to, a previous protest and notice to him.
The notarial seal is of itself evidence of the dishonor of a foreign bill, but not of an inland bill. And no collateral statement in the certificate is evidence of the fact therein stated; thus the statement by a notary, that the drawee refused to accept or pay because he had no funds of the drawer, is no evi dence of the absence of such funds.
Notice must be given even to one who has knowledge. No particular form is necessary; it may be in writing, or oral; all that is absolutely essential is, that it should designate the note or bill with sufficient distinctness, and state that it has been dishonored; and also that the party notified is looked to for payment; but it has been held that the notice to the party bound to pay, when given by the immediate holder of the bill, sufficiently implies that he is looked to. Notice of protest for non-payment is sufficient notice to indorsers of demand and refusal. How distinctly the note or bill should be described cannot be precisely defined. It is enough if there be no such looseness, ambiguity, or misdescription as might mislead a man of ordinary intelligence ; and if the intention was to describe the due note, and the party notified was not actually misled, this would always be enough.
The notice need not state for whom payment is demanded, gor where the note is lying ; and even a misstatement in this respect may not be material if it do not actually mislead.
No copy of the protest need be sent to indorsers; but information of the protest should be given.
If the letter be properly put into the post-office, any mis carriage of the mail does not affect the party giving notice. The address should be sufficiently specific. Only the surname, as “Mr. Ames,”—especially if sent to a large city, would not, in general, be enough. If a letter, however generally directed, can be shown to have reached the right person at the right time, it is sufficient. The postmarks are strong evidence that the letter was mailed at the very time these marks indicate but this evidence may be rebutted, that is, contradicted.
A notice not only may, but should, be sent by the public post. It may, however, be sent by a private messenger; but is not sufficient if it do not arrive until after the time at which it would have arrived by mail. It may be sent to the town where the party resides, or to another town, or to a more distant post office, if it is clear that he may thereby receive the notics earlier. And if the notice is sent to what the sender deems, after due diligence, the nearest post-office, this is enough. If the parties live in the same town, notice should not be sent by mail.
The notice should be sent either to the place of business, or to the residence, of the party notified. But if one directs a notice to be sent to himself elsewhere than at home, it may be so sent, and bind not only him, but prior parties, although time is lost by so sending it.
The notice of non-payment should be sent within reasonable time; and in respect to negotiable paper, the law-merchant defines this within very narrow limits. If the parties live in the same town, notice must be given or sent so that the party to whom it is sent may receive the notice in the course of the day next after that in which the party sending has knowledge of the fact. If the parties live in different places, the notice must be sent as soon as by the first practicable mail of the next day, or the next mail, if there be none on the next day.
Each party receiving notice has a day, or until the next post after the day in which he receives it, before he is obliged to send the notice forward. Thus, if there be six indorsers, and the note is due on the roth of May, in New York, and is then demanded and unpaid, the holder may send it by any mail which leaves New York on the nith of May, to the last indorser, wherever he lives; and that indorser may send it to the indorser immediately before him, by any mail on the day after he receives it; and so may each of the parties receiving notice; and all the parties to whom notice is sent in this way will be held. So, too, a banker, with whom the paper is deposited for collection, is considered a holder, and entitled to a day to give notice to the depositor, who then has a day for his notice to antecedent parties. The different branches of one establishment have been held distinct holders for this purpose, and each to be entitled to a day. It should be sent by the first safe opportunity.
Neither Sunday nor any legal holiday is to be computed ia reckoning the time within which notice must be given.