페이지 이미지
PDF
ePub

CHAPTER VII.

PRESENTMENT AND PROTEST. *

SECTION 34. PRESENTMENT IN GENERAL.

There are two presentments to be made by the holder of a bill of exchange, the presentment for acceptance and the presentment for payment. The former is properly made any day before the day of maturity of the bill is rearhed; the latter, the presentment for payment, is properly made on the day of the maturity of the bill. Where the right of presentment for acceptance is delayed until the day of maturity, then the right to present for acceptance is merged in the right to demand payment. The only presentment to be made of a promissory note is the presentment for payment. Presentment for acceptance and payment is a prerequisite to charge the persons secondarily liable on the bill of exchange, and presentment of a note at maturity for the payment of the same is necessary to charge those secondarily liable on the note.

SECTION 35. ESSENTIALS OF PRESENTMENT FOR AC

CEPTANCE. In connection with the subject of presentment for acceptance it is necessary to consider by whom and to whom presentment should be made; the place of presentment; and the manner of presentment; the time of presentment; and when presentment would be necessary. It may be said, then, that presentment should be made by the holder in person or by his duly authorized agent. The presentment should be made

Chapter VII is written by Shelley B. Neltnor.

[merged small][ocr errors]

to the drawee or his duly authorized agent. A bill drawn against a partnership firm may be presented to any one of the partners, but a bill drawn against several persons not doing business as partners should be presented to them all, but if the first person to whom it is presented refuses to accept, this would render the acceptance by the other of no avail; so it would seem that the dishonor by the first presentment and demand would give the holder the right to treat it as a dishonor. Where the presentment and demand are made to the agent of the drawee care should be exercised by the drawer in determining whether the agent's authority extends to the acceptance or non-acceptance of the paper.

As to place of presentment for acceptance; it may be made either at the drawee's place of business, if he has a place of business, or at his domicile. As to the manner of presentment, it may be said the holder on making presentment should have the bill in his

possession and should exhibit it and should demand the acceptance of the same. This is only fair to the drawee, as he may then determine whether under the circumstances of the matter he will choose to elect to accept or not to accept the paper as drawn. If, however, the drawee does not ask to see the bill, a failure to exhibit it would not on that account discharge the drawer and indorsers on the bill having been protested for dishonor.s

When a bill is made payable at a stated number of days after sight, or at sight, it should be presented within a reasonable time or without unreasonable delay. A bill of exchange payable on demand does not require • Story on Bills and Notes, Soo. · Fall River Union Bank vg. Wilpresentment for acceptance. Presentment for acceptance should be made when presented at the place of business of the drawee during business hours. Presentment at a bank should be during banking hours. If presentment is made at the house, then a presentment made any time before bed time, the hour of retiring, is good.

lard, 5 Metc., 216. • Fisher vs. Beckwith, 19 Vt., 31.

229.

The hour of presentment is only material where no answer is received. If an answer is actually received at any hour, the presentment will then be good.”

Bills payable on demand, or those instruments which are made payable a number of days after date, or bills payable on a day certain, need not be presented for acceptance; a presentment for payment alone is required.?

It is, however, the better practice to present a bill for acceptance even though it is payable at a future day certain, as in this way it can be easily ascertained whether it will be honored, and also to secure the acceptor's liability.

SECTION 36. PRESENTMENT FOR PAYMENT.

Anyone who is a bona fide holder of a promissory note, or a bill of exchange, may present it for payment on the maturity of the paper. But the possession of paper by one person which is unindorsed, where it is made payable to the order of another, would not give the holder a right to demand payment as a bona fide holder.:

Where the holder can, however, show by extraneous evidence his ownership of the paper, as for instance • Townsley vs. Sumrall, 2 Pet., 170. • Daniels on Negotiable Instru. • Skelton vs. Dustin, 92 m., 49.

ments, Vol. 1, Sec. 454. • Story on Bills, Sec. 237.

• Doubleday vs. "Kress, 50 N. Y., I Batchellor vs. Priest, 12 Pick.,

413; Barnett vs. Ringgold, 80 399.

Ky., 289.

10

an assignment of the

paper,

he may demand payment of the same and the person to whom it was presented could not insist on the indorsement.

Where the ownership of the paper passes to the administrator by the death of the owner the administrator properly makes his presentment; so on the bankruptcy of the holder his assignee takes his place for the purpose of demanding payment of the paper."

11

SECTION 37. WHEN THE MAKER OF A NOTE OR AN

ACCEPTOR OF A BILL IS DEAD. When the person primarily liable on a note or bill is dead, as the maker of a note, or the acceptor of a bill, then presentment for payment should be made to the personal representative of deceased maker or acceptor, if there is a personal representative appointed; if not, then presentment should be made at the place where the paper was payable if a place is mentioned, otherwise presentment should be made at the domicile of the deceased.” Where the persons primarily liable are partners and one of the partners is dead, then presentment should be made to the surviving partner."

A person making a presentment for payment should exercise due diligence in any event, and he should endeavor not to time his presentment so as to make it impossible for the one to whom presentment is made to meet the payment, nor should be manage the presentment so as to take the maker or acceptor off his guard. Presentment at an improper place or at an improper time would be a nullity." Where presentment is fixed at a particular place, it need not then

13

Pease vs. Warren, 25 Mich., 9. u i Parsons, N. & B., 360. W Story on Notes, Sec.

253.

w Cayuga County Bank vs. Hunt,

2 Hill, 635. * Johnson vs. Haight, 13 Jobno.,

is

be a personal presentment on the maker or acceptor; presentment at the place named is sufficient. A demand of payment is a usual essential where the paper payable generally, but this would be unnecessary where a demand would be impracticable or impossible; as, for instance, where the maker or acceptor has absconded, or in case where he has no known place of residence.15

SECTION 38. EFFECT OF FAILURE TO PRESENT A BILL

OR NOTE FOR PAYMENT. Briefly it may be stated that a failure to present a promissory note or a bill of exchange for payment at the proper place on the day of maturity will discharge the persons secondarily liable on the paper, and will further relieve the maker or acceptor from the liability of payment of further interest on the paper, if the maker or acceptor was prepared and stood ready to meet the paper according to the terms of the same, as stipulated in the note or bill. The maker or acceptor would not, however, be relieved from liability to pay the principal sum named in the note or bill. As to the principal sum, the maker and acceptor continue to be liable at all times and everywhere for its payment within the period of the statute of 'limitations. The instituting of a suit against the maker or acceptor is sufficient demand as to them.16 So far as the drawer of a bill or the indorser of a note or bill is concerned, the holder is held to the strictest liability in the matter of presenting the paper on the day of maturity and complying with the other terms of the note or bill.17 w Whittier vs. Graffam, 3 Greenl. 1 Johnson vs. Haight, 13 Johns., 30 Jackson VB. Packer, 13 Conn.

82.

470.

342.

« 이전계속 »