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the acceptor's or maker's place of business has been permanently closed, and he has a domicile in the city or town, presentment should be made there. This ruling intimates, as we think, the true distinction to be taken. If the place of business be permanently closed, it would be right to seek the payor at his domicile in the same place, if he have one, as that would be the place where he would be most likely found. But as long as he has a place of business, it is his duty to keep some one there to respond to business demands. That remains the place where he would be naturally and properly sought, and when he closes his doors, it is presumable that he declines to meet the usual business engagements.

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1119. When place of payment is closed. If the holder, on the day of maturity, finds the bank or other place of payment closed, he is not bound to make any further demand to charge either drawer or indorser.12 If the paper is payable at a certain bank that has ceased to exist, or at the counting-room of a firm which has dissolved before its maturity, it will certainly be sufficient to make presentment to the bank which has succeeded the former institution, if such there be, or at the counting-room of the suc ceeding firm, if such there be. Where a note was payable at

the maker. Therefore the indorser is discharged." See also Story on Notes, § 238.

40. Granite Bank v. Ayres, 16 Pick. 392; Talbot v. National Bank, 129 Mass. 67. See ante, § 637.

41. Hine v. Allely, 4 B. & Ad. 624; Central Bank v. Allen, 16 Me. 41; Apperson v. Bynum, 5 Coldw. 349; Rogers v. Langford, 1 Cromp. & M. 637; Sands v. Clarke, 19 L. J. C. P. 84; Edwards on Bills, 498. See Howe v. Bowes, 16 East, 112, 5 Taunt. 30; Lane v. Bank of West Tennessee, 9 Heisk. 419; Erwin v. Adams, 2 La. 318.

42. De Wolf v. Murray, 2 Sandf. 166; Derg v. Abbott, 83 Pa. St. 158; Faulkner v. Faulkner, 73 Mo. 336, citing the text.

43. Central Bank v. Allen, 16 Me. 41; Roberts v. Mason, 1 Ala. 373; Bynum v. Apperson, 9 Heisk. 637; Hutchinson v. Crutcher, 98 Tenn. 421, 39 S. W. 725. In this case, note in question, by its terms, was payable at the Commercial Nat. Bank,- before maturity of the note, comptroller of currency under authority of law, appointed a receiver of said bank, and books and papers belonging to the insolvent bank were removed to another office in same city. At the time of the maturity of the note, Merchants' Bank was occupying old banking office of the Commercial Bank and the receiver of the last-named bank still occupied his separate office as above stated. Held, that the note must be presented to the receiver of the Commercial Nat. Bank, in order to hold indorser.

44. Sanderson v. Oakey, 14 La. 373.

"the Bank of the U. S. at Mobile," and before its maturity that bank had been sold out to the "Bank of Mobile," and ceased to have a place of business in Mobile, it was held that presentment at the Bank of Mobile was sufficient. The like rule prevails as to notice. Where the holder, on the day of maturity, found the indorser's dwelling-house shut up, the doors locked, and the family out of town, as he learned from the next neighbor, on a visit of unknown duration, it was held that due diligence had been exercised to give notice, and the indorser was liable.46 So where the cashier found the drawer's counting-room closed, and no one there to answer, it was held sufficient.47

§ 1120. Inability to find the maker or acceptor does not excuse want of notice to drawer or indorser;48 but inability to find the drawer or indorser, or ascertain his whereabouts, after exercising due diligence, does excuse want of notice, because it is then impossible. 49 But the holder must continue his inquiries from day to day, and give notice as soon as he does ascertain the party's whereabouts the excuse being coextensive only with the neces sary delay; and the impediment being only temporary, the duty revives with its cessation.50

Delays of one day,51 of three days,52 of nine days,53 of over two months, of four months,55 have, under the particular circumstances, been excused.

The imprisonment of the party is no excuse for want of demand, protest, or notice.56

§ 1121. Extent of inquiry needful. When inquiry is among the public generally, it should not be abandoned until all prospect of results disappears Where inquiry was made by the notary in a place of persons at the hotel barroom, on the street, and at

45. Roberts v. Mason, 1 Ala. 373.

46. Williams v. Bank of the United States, 2 Pet. 96.

47. Crosse v. Smith, 1 Maule & S. 545. See ante, § 1016.

48. 1 Parsons on Notes and Bills, 527.

49. 1 Parsons on Notes and Bills, 527.

50. See ante, chapter XXX.

51. Browning v. Kinnear, Gow. 81.

52. Bateman v. Joseph, 2 Campb. 461.

53. Baldwin v. Richardson, 1 B. & C. 245.

54. Firth v. Thrush, 8 B. & C. 387.

55. Sturgis v. Derrick, Wight, 76. See 1 Parsons on Notes and Bills, 527, note k.

56. Story on Bills, § 318.

the post-office, it was held not sufficient, and the court said: "If he had been told by some credible person who would be likely to know the fact, he might have acted upon that information without pushing his inquiries further. But until some one is found who professes to be able to give the required information, it will not do to stop short of a thorough inquiry at places of public resort, and among such persons as would be most likely to know the residence of the indorser." 57 If the business men of a place give distinct information that the party sought resides at a certain other place, such information may be acted upon with safety, though erroneous.58 Ordinary diligence in a case like this can mean no more than that the inquiry shall be pursued until it is satisfactorily answered." 59

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§ 1122. If the party to be notified is traveling, or is absent from home for any reason, and his present address is known to the holder, or if his absence from home is known, and the holder has any means of learning his address, or of ascertaining whom he has left behind to attend to his business, it would probably be his duty to send notice accordingly. But if a party leaves home without taking the usual and proper precautions to facilitate sending business communications to him, undoubtedly this is his fault, and he can relieve himself from no responsibility by such fault, and will be held to all parties as if duly notified, provided due diligence be used.61

§ 1123. If after due diligence neither the maker nor his usual place of residence or business can be found, presentment to him will of necessity be excused, and the indorser held liable without it. Thus, where the maker of a note is a sailor who has no established place of abode, and is at sea when the note matures, proof of these facts will constitute excuse for nonpresentment." But if he has a place of residence where his family are living when the note matures, it will be necessary to present it there.63 And so if he has any known domicile in the State.64

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57. Spencer v. Bank of Salina, 3 Hill, 520. See Peet v. Zanders, 6 La. Ann. 364.

58. Brighton Market Bank v. Philbrick, 40 N. H. 506.

59. Bank of Utica v. Bender, 21 Wend. 643, Bronson, J.; ante, § 1117.

60. 1 Parsons on Notes and Bills, 493.

61. 1 Parsons on Notes and Bills, 493.

62. Moore v. Coffield, 1 Dev. 247; Taylor v. Snyder, 2 Den. 145.

63. Whittier v. Graffam, 3 Greenl. 82; Dennie v. Walker, 7 N. H. 199. 64. Glaser v. Rounds, 16 R. I. 236, 14 Atl. 863.

SECTION III.

RECEIVING THE BILL OR NOTE TOO LATE AS EXCUSE FOR WANT OF PRESENTMENT AND NOTICE.

§ 1124. In the third place, where the payee, or subsequent indorsee, does not transfer and indorse the bill or note until so near its maturity that it is then impracticable on account of the distance from, or inaccessibility to, the place where the maker or acceptor has his place of business or residence, or where the bill or note is payable, the payee, or other indorser so transferring it, will be presumed to have waived the taking of these steps which they must have known were impossible.65 This excuse, however, will only avail as between the immediate parties who have transferred and received the instrument at so late a period; for as to the previous parties who transferred it long enough before maturity to leave adequate time for its due presentment, they have a right to insist on the strict performance of their obligations by those who are subsequent holders, and it is the folly of such holders to take the instrument so late that they cannot hold all the parties liable upon it. This doctrine is favored by the later text-writers, and seems entirely sound, and though Chitty states a different one, it does not seem to be sustained by the case he cites to its full extent.67

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65. 1 Parsons on Notes and Bills, 456; Story on Bills, § 326; Story on Notes, §§ 203, 265. (But all of the American cases cited by Story in his note do not enunciate the doctrine.) The broad doctrine is stated in Freeman v. Boynton, 7 Mass. 483, and some early cases, that distance is in itself an excuse for delay, and that the holder may wait for the maker to come and pay. See Haddock v. Murray, 1 N. H. 140; Barker v. Barker, 6 Pick. 80. But they find no favor in the latter authorities.

66. Ibid.; Bayley on Bills, chapter VII, section I, p. 149; Story on Notes, § 265; Mason v. Pritchard, 9 Heisk. 798.

67. In Anderton v. Beck, 16 East, 248, it appeared that, on December 26th, plaintiff received in Yorkshire a bill on London, payable there the 28th. He kept it till the 29th, and then sent it to the Lincoln Bank, which forwarded it to London without delay, and it was presented for payment on January 2d. The court decided that the holder had been guilty of laches in keeping the bill from the 26th to the 29th, and had lost his remedy against drawer and indorser. In Chitty on Bills (13th Am. ed.) [*389], 440, it is said: "But the circumstance of the holder having received a bill very near the time of its becoming due constitutes no excuse for a neglect to present it for payment at maturity, for he might renounce it if he did not choose to undertake that duty, and send the bill back to the party from whom he received it; but if he

SECTION IV.

SICKNESS OF OR ACCIDENT TO THE HOLDER.

§ 1125. In the fourth place, when sudden illness or death of or accident to the holder or his agent prevents the presentment of the bill or note in due season, or the communication of notice, the delay is excused, provided that presentment is made and notice given as promptly afterward as the circumstances reasonably permit." This doctrine rests upon the same principle as that which excuses want of punctuality when overwhelming calamities or accidents of a general nature prevent. Pothier states that where the holder transmits a bill to a distant correspondent for presentment and payment, and the latter dies suddenly on the eve of the time when the bill ought to be paid or protested for dishonor, it will be sufficient if the presentment is made within a reasonable time after the holder is informed of the accident, and is enabled to give orders to receive the money. And he puts the sudden illness of the holder or his agent on the same footing. It is said by Mr. Chitty that "it has been considered that the detention of the bill, by contrary winds, or the holder having been robbed of the bill, or the like, would afford an adequate excuse, provided he present it as soon afterward as he is able." T He adds, however: "But a notice of the reason why the bill itself cannot be produced should be given; and a demand of payment should, if possible, be made on the very day the instrument falls due; and if it be a foreign bill, it should be duly protested, in case the drawee should refuse payment." In a subsequent

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keep it, he is bound to use reasonable and due diligence in presenting it. But it has been considered in France, that if an indorser himself transfers a bill so late to the holder as to render it impracticable to present it precisely at maturity, he cannot take advantage of a delay in presentment so occasioned by himself, though the prior indorser and the drawer may." See also Thompson on Bills (Wilson's ed.), 297.

68. Story on Bills, § 308; Chitty on Bills (13th Am. ed.) [*330, 451, 491], 370, 509, 556; Thompson on Bills (Wilson's ed.), 280, 368; 1 Parsons on Notes and Bills, 267; Edwards on Bills, 649; Duggan v. King, Rice, 239; White v. Stoddard, 11 Gray, 258; Aymar v. Beers, 7 Cow. 705; Lord Kenyon, C. J., in Hilton v. Shepherd, 6 East, 16; Chitty, Jr., on Bills, 710. See ante, chapter XVII, § 478, vol. I.

69. Pothier De Change, note 144; Chitty on Bills (13th Am. ed), 509, note a; Story on Bills, § 309.

70. Chitty on Bills (13th Am. ed.), [*389], 439.