CHAPTER
XVII.

Payable at more than one place.

Conduct of the party presenting.

Consequence of not duly presenting.

be made payable at a particular place, it is not necessary to state a presentment to the acceptor there; it is sufficient to state a presentment at that place (u). An averment that a bill was presented to the acceptor will be satisfied by proof that it was presented at the place where it was made payable, though no person were there in attendance (x), and though the acceptor did not live there (1).

Where a promissory note is payable at either of two places, presentment at either of them will suffice. Thus, where a country bank note was made payable both at Tunbridge and in London, presentment in London was held sufficient, though it was proved that had it been presented at Tunbridge, the nearest place, it would have been paid (2). But it is conceived that presentment of a cheque to the London bankers of the drawer, though described on the cheque as agents, is insufficient, for the obligation to pay a cheque must in general depend on the state of the drawer's account, which the London agents may not know (a).

The party presenting should be ready and authorized to receive the money, and has no right (at least, unless usage require it) to impose on the drawee any trouble or risk in remitting the money elsewhere (b). If the holder die, presentment should be made by his personal representatives.

The consequence of not duly presenting a bill or note is that all the antecedent parties are discharged from their liability, whether on the instrument, or on the consideration

general allegation of presentment,

it was held that the statement of
the venue London in the margin
of the declaration cured the
defect. Wilmot v. Williams, 14
L. J., C. P. 33; 7 M. & Gr.
1017; and see Boydell v. Hark-
ness, 15 L. J., C. P. 233; 3 C. B.
168.

(u) Shelton v. Braithwaite, 8
M. & W. 252; Hawkey v. Bor-
wiek, 1 Y. & J. 376; 4 Bing. 135;
12 Moore, 478; Philpot v. Bryant,
3 C. & P. 244; Bing. 717; 1
M. & P. 754; 29 R. R. 710; and
see Bush v. Kinnear, M. & Sel.
210; Huffam v. Ellis, 3 Taunt.
415 Ambrose v. Hopwood, 2
Taunt. 61; De Bergareche v.
Pillin, 3 Bing. 476; 11 Moore, 350.

(x) Hine v. Allely, 4 B. & Ad. 624; 1 N. & M. 433; 38 R. R. 330; and see Hardy v. Woodroofe, 2 Stark. 319; 20 R. R. 689. So where a bill was drawn on an acceptor at 38, Minto Street, accepted generally, and when due, the acceptor having changed his residence, was presented to a lodger at No. 38, the presentment was held sufficient. Burton v. Jones, 1 M. & Gr. 83; 1 Scott, N. R. 19, S. C.

(y) Hardy v. Woodroofe, 2 Stark. 319; 20 R. R. 689.

() Beeching v. Gower, Holt, N. P. C. 313; 17 R. R. 644. (a) Bailey v. Bodenham, 33, L. J., C. P. 252. (b) Ibid.

for which it was given (c), save, as we have seen, the drawer CHAPTER of a cheque not injured by the delay or failure.

The acceptor or maker, however, still continues liable in most cases, presentment not being generally necessary for the purpose of charging him (d). The action itself is sufficient demand, and that though the instrument be made payable on demand (e). But though the absence of demand be in general no defence, yet if the acceptor or maker pay on action brought without any previous demand, the court will take the question of costs into consideration (ƒ).

XVII.

Acceptor or maker still

liable.

There are circumstances, however, which will excuse the Neglect to neglect to present for payment (g).

The fact that the holder has reason to believe that the bill or note will on presentment be dishonoured, does not dispense with the necessity for presenting for payment (h). The bankruptcy or insolvency of the drawee or maker is no excuse for not presenting, for many means may remain of obtaining payment by the assistance of friends or otherwise (i).

present when excused.

CHAPTER
XVII.

Delay when excused.

Not necessary

to charge a guarantor.

Delay in making presentment for payment is excused if caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct or neglect. When the cause of delay ceases to operate, presentment must be made with reasonable diligence (k).

Presentment for payment is dispensed with when, after the exercise of reasonable diligence, it cannot be effected. If the acceptor or maker abscond, and his house be shut up, the bill or note may be at once treated as dishonoured; but if he have merely removed, an effort must be made to find him out (7).

When a bill or note is seized under an extent, the drawer and indorsers are not discharged by non-presentment, for laches is not imputable to the Crown.

Presentment for payment is also dispensed with when the drawee is a fictitious person; and as regards the drawer, when the drawee or acceptor is not bound, as between himself and the drawer, to accept or pay the bill, and the drawer has no reason to believe that the bill would be paid if presented (m); and so, too, as regards an indorser, if the bill or note were made for his accommodation, and he has no reason to expect that it would be paid if presented. The tendency of the Code seems, therefore, to make it more difficult to excuse presentment for payment than notice of dishonour (n).

Neglect to present has been held not to discharge a man who guarantees the due payment of a bill or note (0); and

holder by s. 41 in presenting for
acceptance where the drawee is
dead or bankrupt.

(k) Code, s. 46 (1).

(7) Ibid. (2) a; Anon., 1 Ld. Ray. 743; Hardy v. Woodroofe, 2 Stark. 319; 20 R. R. 689; Hine v. Allely, 4 B. & Ad. 624; 1 N. & M. 433; 38 R. R. 330; Collins v. Butler, 2 Stra. 1087; Sands v. Clarke, 19 L. J., C. P. 84 8 C. B. 751. If the drawer could not be found, it was suffi cient to plead that fact without averring due search: Starke v. Cheesman, Carthew, 509; 1 Ld. Ray. 538; but if presentment were alleged, evidence that the drawer could not be found was admissible. Leeson v. Pigott, circa 1788; Burgh v. Legge, 5 M. & W. 421.

(m) Terry v. Parker, 1 Nev. &

Per. 752; 6 A. & E. 502; Prideaux v. Collier, 2 Stark. 57; Hill v. Heap, D. & R., N. P. C. 57; 25 R. R. 791; De Berdt v. Atkinson, 2 H. Bla. 336; Wirth v. Austin, L. R., 10 C. P. 689; Code, s. 46 (2) bande; i.e., when the drawee has no effects of the drawer in his hands, nor, it should seem, reasonable probability of receiving any. Cumming v. Shand, 29 L. J., Ex. 129. But presentment must be made to charge an indorser. Saul v. Jones, 28 L. J., Q. B. 37; 1 E. & E. 59.

(n) Code, s. 46. See ante, p. 248.

(0) Hitchcock v. Humfrey, 5 M. & G. 559; Walton v. Mascall, 13 M. & W. 453. Nor is a guarantor entitled in general to notice of dishonour; but when by custom it is usual to guarantee, instead

XVII.

where a man became guarantor for the vendee of goods, CHAPTER who accepted a bill for the amount and then became bankrupt, the notorious insolvency of the vendee was held to excuse the drawer's presentment, so as to enable him to charge the guarantor without, unless it could be shown that the bill would have been paid if duly presented, though it would have been otherwise in an action on the bill (p).

There may also be a waiver, express or implied, of due Waiver. presentment (q). An implied waiver would be gathered from the conduct of the party, as when a man with notice of the failure or undue delay in presentment, promises to pay the bill, or makes or promises to make a partial payment on account (r). The defendant's part payment or promise to pay after the bill or note is due, is primâ facie evidence of presentment (s).

A bill or note is dishonoured by non-payment when either Dishonour by it is duly presented and payment is refused, or cannot be non-payment. obtained, or presentment being excused it remains overdue

and unpaid ().

Subject to the other provisions of the Code, an immediate right of recourse against the drawer and indorsers accrues to the holder (u).

of indorsing bills of exchange, the party guaranteeing is, as regards his rights against the acceptor, in much the same position as an indorser: Ex parte Bishop, L. R., 15 Chan. D. 400; and consequently may well be entitled to expect due presentment, and perhaps, too, notice of dishonour.

(P) Warrington v. Furber, 8 East, 242; 6 Esp. 89; Smith v. Bank of New South Wales, L. R., 4 P. C. 194.

(1) Code, s. 46 (2) e.

(r) Vaughanv. Fuller, 2 Stra. 1246; Hopley v. Dufresne, 15 East, 275; 13 R. R. 463; Haddock v. Bury, 7 East, 236; Hodge v. Fillis, 3 Camp. 463; Goodall v. Dolly, 1 T. R. 712; 1 R. R. 372;

Anson v. Bailey, Bull. N. P. 276.
As to express waiver inserted in
the bill itself, see Code, s. 16.

(s) Crozon v. Worthen, 5 M. &
W. 5; Lundie v. Robertson, 7
East, 232 Campbell v. Webster,
15 L. J., C. P. 4; 2 C. B. 258;
Greenway v. Hindley, 4 Camp.
52; Cordery v. Colville, 32 L. J.,

C. P. 210.

(t) Code, s. 47 (1).

(u) Ibid. (2). The other pro

visions seem to be ss. 48 and 51,
as to notice of dishonour and
protest necessary to preserve that
right of recourse; and ss. 15 and
65-68, as to referee in case of
need and acceptance and pay-
ment for honour.

CHAPTER
XVIII.

Payment by Bankers' Notes

or Cheques.

What amounts to Payment 303

PAYMENT SUPRA PROTEST

Requisites of

Rights of Payer for Honour 309
Consequence of Holder re-

310

None on Promissory Notes. 310

A BILL is discharged by payment in due course by or on behalf of the drawee or acceptor.

Payment in due course means payment made at or after the maturity of the bill to the holder thereof in good faith, and without notice that his title to the bill is defective.

Payment by a party other than the acceptor or maker, or premature payment by him, does not discharge the bill or note, and it can in general be re-issued; but in accommodation bills, payment in due course by the party accommodated is a discharge of the bill (a).

(a) Code, s. 59. Holder means payee or indorsee of a bill or note (payable to order) in possession

of it, or bearer of one payable to bearer. Defects in title, as defined in s. 29, are fraud, duress, illegal