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payment, to be sufficient, must be made on the day when, by its terms, the instrument is due.27 This does not mean the day expressly designated in the instrument, but the last day of the additional days of grace, according to the practice of merchants.28 Lord Holt, in 1701, in Tassell v.

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notes the person who held the others, and who was a party to the collateral agreement, was entitled according to a correct interpretation of that agreement, to a reasonable time after such default in which to make presentment and give notice of dishonor to the defendant indorser, who was also a party to the collateral agreement. Creteau v. Foote & Thorne Glass Co., 40 App. Div. 215, 57 N. Y. Supp. 1103. As to collateral agreements purporting to accelerate the time of payment of the instrument, see p. 442, supra. That the holder has an option to demand payment at any time does not necessarily make the instrument payable on demand, or, if not so payable, show that it has matured within the meaning of this rule. See Usefof v. Herzenstein, 65 Misc. Rep. 45, 119 N. Y. Supp. 290 (N. I. L.). Thus a certificate of deposit "payable on return of this certificate 12 months after date, with interest for the time specified only, payable in 6 months, if desired, with interest, * no interest after due," is not as between the holder and indorser, due at the end of six months. Citizens' Bank of Los Angeles v. Jones, 121 Cal. 30, 53 Pac. 354. See p. 442, supra. And even where, by the terms of the instrument, it is to become due upon the happening of a named contingency, the instrument is generally construed as merely giving the holder such an option to declare the instrument due, and not as becoming due, as between the holder and indorser, upon the happening of the contingency. See Chicago R. Equipment Co. v. Merchants' Nat. Bank, 136 U. S. 268, 284, 10 Sup. Ct. 999, 34 L. Ed. 349. See p. 442, supra. But it seems that where the holder, who by the terms of the instrument, expressed upon its face, has such an option, does some act in exercise of that option, showing that he treats the instrument as due, he must, as against an indorser, treat the instrument as maturing upon the day of that act. Galbraith v. Shepard, 43 Wash. 698, 86 Pac. 1113 (N. I. L.).

27 Mechanics' Bank at Baltimore v. Merchants' Bank at Boston, 47 Mass. (6 Metc.) 13; Towle v. Starz, 67 Minn. 370, 69 N. W. 1098, 36 L. R. A. 463; Demelman v. Brazier, 193 Mass. 588, 79 N. E. 812 (N. I. L.). See, however, Freeman v. Boynton, 7 Mass. 483, where it was held that, if the holder and maker of a note reside in different towns, the holder may retain the note at his place of business during the day of maturity and is entitled to a reasonable time after that date in which to make presentment.

28 Thus a statute abolishing days of grace cannot constitutionally apply to mercantile obligations already made. Wood v. Rosendale, 18 Ohio Cir. Ct. Rep. 247. See President, etc., of City Bank v. Cut

NORT.B.& N. (4TH ED.)-33

Lewis,29 thus expounds the rule: "In case of foreign bills of exchange, the custom is that three days are allowed for payment of them; and, if they are not paid upon the last of the said days, the party ought immediately to protest the bill and return it, and by this means the drawer will be charged. But, if he does not protest it on the last of the three days, which are called the 'days of grace,' there, although he upon whom the bill is drawn fails, the drawer will not be chargeable, for it shall be reckoned his folly that he did not protest. But if it happens that the last day of the said three days is a Sunday or a great holiday, as Christmas Day, upon which no money used to be paid, there the party ought to demand the money upon the second day; 3o and, if it be not paid, he ought to protest the bill the second day; otherwise, it will be at his own peril, for the drawer will not be chargeable." These rules apply alike to foreign and inland bills and promissory notes,3 and to paper payable in installments; grace being allowed upon each installment.32 They are, however, very generally modified by statute. While days of grace were retained, statutes in several states adopted generally the rule otherwise governing only bills or notes payable without grace, which allows payment on the next succeeding business day, because, the debtor not being compelled to do. business or make payment on a holiday, the next day is the first legal time at which the creditor can demand pay

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ter, 20 Mass. (3 Pick.) 414; Hammond, Snyder & Co. v. American Express Co., 107 Md. 295, 68 Atl. 496.

291 Ld. Raym. 743.

30 Bussard v. Levering, 6 Wheat. 102, 5 L. Ed. 215; Kuntz v. Tempel, 48 Mo. 71; Barrett v. Allen, 10 Ohio, 426; Reed v. Wilson, 41 N. J. Law, 29. "When days of grace are allowed on a bill or note, and the third day falls on Sunday, the bill or note is payable on the previous Saturday." Per Bronson, J., in Salter v. Burt, 20 Wend. (N. Y.) 205, 32 Am. Dec. 530.

31 Bank of Washington v. Triplett, 1 Pet. 25, 7 L. Ed. 37; Ogden v. Saunders, 12 Wheat. 213, 6 L. Ed. 606; Brown v. Harraden, 4 Term R. 148; Cook v. Darling, 2 R. I. 385; Beck v. Thompson, 4

Har. & J. (Md.) 531.

32 Oridge v. Sherborne, 11 Mees. & W. 374.

ment.33

33 But now, in most jurisdictions, days of grace have been abolished.84

With respect to the time of presentment, it is still necessary to consider the hour of the day at which presentment, to be sufficient, must be made. The hour of presentment, on the proper day, is immaterial, where the presentment is to the maker, drawee, or acceptor, or his agent for the purpose of making or refusing acceptance or payment, provided that no objection was expressly or impliedly made to the hour of presentment by the person to whom presentment is made.35 But if a presentment other than to such a person is relied upon, or if the refusal was expressly or impliedly placed upon the ground that the hour of presentment was unreasonable, it is necessary for the holder to show that he presented the instrument at a reasonable time of day. What is a reasonable time of day for presentment depends upon the practice of merchants.37 In ordinary cases, where the reasonableness of the hour is material, the following rules are applicable: (1) Presentment at a bank should be during banking hours,38 but if

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33 Avery v. Stewart, 2 Conn. 69, 7 Am. Dec. 240; Salter v. Burt, 20 Wend. (N. Y.) 205, 32 Am. Dec. 530; Colms v. Bank of Tennessee, 4 Baxt. (Tenn.) 422; Sands v. Lyon, 18 Conn. 18.

34 N. I. L. § 85. For modification in several states and comments, see Brannan, Anno. N. I. L. (2d Ed.) 98-100.

35 Farnsworth v. Allen, 4 Gray (Mass.) 453; King v. Crowell, Johns. Cas. Bills & N. 91, semble. But see N. I. L. §§ 72 (subd. 2), 75. Section 145, N. I. L., provides: "Presentment for acceptance must be made * * * at a reasonable hour on a business day."

36 Vaughan v. Potter, 131 Ill. App. 334. In the case of DANA v. SAWYER, 22 Me. 244, 39 Am. Dec. 574, Moore Cases Bills and Notes, 243, it was held that presentment at nearly midnight to the maker, after the latter had retired, would not be sufficient, unless there was a waiver, or unless it was shown that payment would not have been made on a demand at a proper hour.

37 A customary hour for presentment at the place where presentment is made is a reasonable hour within the practice of merchants, although such custom at that place may be different from that at other places. COLUMBIAN BANKING CO. v. BOWEN, 134 Wis. 218, 114 N. W. 451 (N. I. L.), Moore Cases Bills and Notes, 235; Knickerbocker Trust Co. v. Miller, 156 App. Div. 810, 142 N. Y. Supp. 440 (N. I. L.).

38 Elford v. Teed, 1 Maule & S. 28; Parker v. Gordon, 7 East, 385; Staples v. President, etc., of Franklin Bank, 1 Metc. (Mass.) 43, 35

made after banking hours, to the proper authorities in the bank, it is sufficient, if, on that day, no funds were there provided for payment.39 (2) Presentment at a place of business should be made during the usual business hours.4o (3) Presentment at one's residence should be made between the usual hours of rising and retiring.11

Am. Dec. 345; Thorpe v. Peck, 28 Vt. 127. See Metropolitan Bank v. Engel, 66 App. Div. 273, 72 N. Y. Supp. 691 (N. I. L.). It is unnecessary that the instrument be left at the bank where payable during the entire banking day. Archuleta v. Johnston, 53 Colo. 393, 127 Pac. 134 (N. I. L.). Where payment is demanded and refused at the bank where the instrument is payable, it will be presumed, until the contrary is shown, that the demand was made during banking hours. Archuleta v. Johnston, supra.

39 In the case of Salt Springs Nat. Bank of Syracuse v. Burton, 58 N. Y. 432, 17 Am. Rep. 265, it was shown that, upon the day the note was due, the indorser, being prepared to pay it, sent the maker to the bank during banking hours to ascertain the amount. The note was presented for payment, an hour after the close of banking hours, by the holder, to the cashier, and payment demanded. This was refused on the ground that there were no funds deposited for the purpose. It was held that the indorser was charged by such demand. And see Bank of Syracuse v. Hollister, 17 N. Y. 46, 72 Am. Dec. 416; Bank of Utica v. Smith, 18 Johns. (N. Y.) 230; Flint v. Rogers, 15 Me. 67; Crook v. Jadis, 6 Car. & P. 191; Commercial & R. Bank of Vicksburg v. Hamer, 7 How. (Miss.) 448, 40 Am. Dec. 80; Cohea v. Hunt, 2 Smedes & M. 227; Shepherd v. Chamberlain, 8 Gray (Mass.) 225, 69 Am. Dec. 248; Bank of Utica v. Phillips, 3 Wend. (N. Y.) 408; Henry v. Lee, 2 Chit. 124; Garnett v. Woodcock, 6 Maule & S. 44. In the case last cited it was held that a presentment of a bill of exchange at the banking house where payable, after banking hours, is sufficient if a person be stationed at the banking house, and return answer of "No orders." Section 75, N. I. L.,

seems, therefore, to be declaratory.

40 Lunt v. Adams, 17 Me. 230; Wallace v. Crilley, 46 Wis. 577, 1 N. W. 301; Triggs v. Newnham, 1 Car. & P. 631; Strong v. King, 35 Ill. 9, 85 Am. Dec. 336, Johns. Cas. Bills & N. 93.

41 Salt Springs Nat. Bank of Syracuse v. Burton, 58 N. Y. 430; Nelson v. Fotterall, 7 Leigh (Va.) 179; Skelton v. Dustin, 92 Ill. 49. In the case of Barclay v. Bailey, 2 Camp. 527, it was held that the presentment of a bill of exchange for payment at the house of a merchant at 8 o'clock in the evening of the day it became due was sufficient to charge the drawer. DANA v. SAWYER, 22 Me. 244, 39 Am. Dec. 574, Moore Cases Bills and Notes, 243.

PROTEST

145. Where the instrument dishonored is a foreign bill, it must be protested (unless protest is excused or dispensed with) in order that the holder may recover from the drawer or indorser. By the law merchant the protest (unless excused or dispensed with) is in general, the only admissible evidence of the facts essential to the dishonor of a foreign bill. By statute, in most of the states, the protest of an inland bill or promissory note is admissible, although not necessary, evidence of the facts essential to dishonor and notice of dishonor.

By "protest" is meant the formal instrument, executed by a notary or other competent person, certifying that the

42 A protest has been defined as "the solemn declaration on the part of the holder against any loss to be sustained by him by reason of the non-acceptance or even non-payment, as the case may be. of the bill in question; and a calling of a notary to witness that due steps have been taken to present it." Daniel, Neg. Inst. (5th Ed.) § 929. In so far as this definition suggests that a statement by the holder before a notary would be a protest, it seems to be inaccurate. There may be some ground in the language used by the earlier authorities for saying that the protest is the dishonor in the presence of a notary or other person competent to make out the certificate of protest. Holt, C. J., in Buller v. Crips, 6 Mod. 29; Buller, N. P. 270. But a careful examination of the language of the earliest as well as of the modern decisions seems to show that "protest" means the certificate of protest, and "protested" describes the drawing up of the certificate. See Vanderwall v. Tyrrell, 1 Moody & M. 87; Orr v. Maginnis, 7 East, 359; Ocoee Bank v. Hughes, 2 Cold. (Tenn.) 52; Byles, Bills, *263; Randolph, Com. Pap. § 1137. These are the senses in which these words are used in the N. I. L. See N. I. L. §§ 152-160. The term "protest" is also used popularly to designate the taking of all the steps essential to a fulfillment of the conditions of the obligation of a drawer or indorser. Townsend's Adm'r v. Lorain Bank of Elyria, 2 Ohio St. 345; Wolford v. Andrews, 29 Minn. 251, 13 N. W. 167, 43 Am. Rep. 201. Thus the words "protest and notice of protest waived" have been held to express a waiver of presentment and notice of dishonor. This conclusion was reached independently of section 111, N. I. L. which was treated as declaring the pre-existing law. Bank of Montpelier v. Montpelier

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