ily demanded, in order to preserve recourse against the indorser, and to preserve the note from defenses which may be made against overdue paper. It is better in all cases where the question is not settled, to decline taking a note on demand by indorsement-or, if taken, to present it with the utmost dispatch. When Note Given for a Loan. § 29. When the note payable on demand has been given for a loan of money, it would then seem clear that it was intended as a continuing security, and the immediate presentment would not be necessary in order to charge the indorser.2 In Scotland, as well as in the United States, this view has been taken; and though high authority has maintained a different doctrine,' we can but regard it as one that strikes the mind with the utmost force. Where demand was not made for twenty-one months, it has been considered sufficient in such a case; and in Scotland, where a bill on demand was granted as a loan, and not as a remittance, presentment six months after date was held sufficient." Notes Payable on Demand "With Interest." § 30. When the note is payable on demand with interest it would seem to have been intended as a continuing interest bearing security; but upon this question, as upon those already discussed respecting notes payable on demand, the authorities are in painful contrariety. In England where a note of £1,000 payable on demand with in 1See 1 Parson's N. & B., 376-7. 2 Thomson on Bills, (Wilson's ed.) 301, citing Leith Banking Company vs. Walker's trustees, 14 S. D. B., 332. 3 Vreeland vs. Hyde, 2 Hall, 429. The court saying: "The rule requiring presentment within a reasonable time was intended for and is applicable to negotiable instruments made for commercial purposes only. It was not intended for cases of suretyship, or notes of a like description, and the present one is evidently excluded from the rule by the peculiar circumstances attending it. Here the holder was an old man not connected with business, residing at some distance from the city. The defendant knew these circumstances, and can not claim any peculiar indulgence from a consideration of the facts, as each case must be governed by the circumstances attending it; in this there must be judgment for the plaintiff." 1 Parsons' N. & B., 380, note d; Bayley on Bills, ch. vII., p. 142, note; Perry vs. Green, 4 Harrison, 61; Sice vs. Cunningham, 1 Cowen, 397, in which case a delay of five months, all the parties residing in New York city, was held to discharge the indorser; Martin 18. Winslow, 2 Mason, 241, seven months' delay held fatal; Field vs. Nickerson, 13 Mass., 131, seven months' delay held fatal, although the accommodation indorser was told by one of the makers that the note would not be demanded immediately. 5 Vreeland vs. Hyde, 2 Hall, 429. 6 Ante note, supra, Thomson, 301. terest had been indorsed and transferred several years after its date; and the question was whether the indorsee took it subject to equities between prior parties. The court said: "If a promissory note, payable on demand, is after a certain time to be treated as over-due, although payment has not been demanded, it is no longer a negotiable instrument. But a promissory note, payable on demand, is intended to be a continuing security. It is quite unlike the case of a cheque which is intended to be presented speedily." The circumstance that the note bore interest did not control the decision of the court; but in New York that feature was considered material; and where such a note was transferred three or four weeks after date, it was said, "it would be contrary to the general course of business to demand payment short of some proper point for computing interest, such as a quarter, half a year, a year, etc;" and was held that the note was not over-due so as to admit a plea of want of consideration. But in a late case, where the note, payable on demand, with interest, was transferred nearly three months after date, the parties having their places of business in the same street of the same city; it was held over-due, so as to admit equities; and in an earlier case a similar note, transferred two and a half months after date, was held open to defense of part payment before transfer. In Vermont the note was held over-due at time of indorsement, ten months after date. § 31. In respect to the time within which a note, payable on demand, with interest, must be presented in order to charge an indorser the like contrariety exists. Eight months' delay was held to discharge an indorser in one case; seven months in another; five months and a half in another, all the parties residing in the same place.8 On the other hand a delay of twenty-one months to present a note payable on demand with interest, has been held not to discharge the indorser. And in a later case in New York, where the note, payable on demand, with interest, was indorsed for accommodation at the time of its date, which was the 5th of May, 1852; and the interest was paid by the maker for three years; and demand of payment was 1 Brooks vs. Mitchell, 9 M. & W., 15; see also Barough vs. White, 4 B. &. C., 325; Gascogne vs. Smith, 1 McClelland & Younge, 338. 2 Wethey vs. Andrews, 3 Hill, 582. Losee vs. Dunkin, 7 John.'s R., 70. Field 18. Nickerson, 13 Mass., 131. 3 Herrick vs. Woolverton, 41 N. Y., 581. 5 Morey vs. Wakepeld, 41 Vt., 24. Martin us. Winslow, 2 Mason, 241. 8 Sice vs. Cunningham, 1 Cowen, 397; see, also, Perry vs. Green, 4 Harrison, 61. 9 Vreeland vs. Hyde, 2 Hall, 429, (see ante.) made, and refused, and notice given on the 24th of December, 1855, it was held that the indorser was still bound.1 Seven days' delay was not considered too long in Massachusetts, under the circumstance, the court not paying consideration to the fact that the note bore interest.* The True Principle to be Deduced. § 32. Where these questions remain undetermined, the authorities are so much at war that it would be difficult to predict what rule would commend itself to the court. It seems to us that where the note was indorsed at the time of making, and whether it bore interest or not, it should be regarded as a continuing security, and would not be overdue in the hands of the payee either so as to open equities or as to discharge the indorser until payment was demanded and refused. But when transferred by indorsement, it would become, by the very act of indorsement, a draft by the indorser upon the maker; and the indorsee holding it should regard it, as it is in fact, a demand through him for the amount due the indorser. And it should, therefore, be presented immediately, subject only to such qualifications as apply to a bill payable at sight. The following observations in "Byles on Bills," on this subject, seem to us worthy of quotation. Says the author: "A common promissory note payable on demand, differs from a bill payable on demand, or a check, in this respect: the bill and check are evidently intended to be presented and paid immediately, and the drawer may have good reasons for desiring to withdraw his funds from the control of the drawee without delay; but a common promissory note payable on demand, is very often originally intended as a continuing security, and afterwards indorsed as such. Indeed, it is not uncommon for the payee, and afterwards the indorsee, to receive from the maker interest periodically for many years on such a note. And sometimes the note is expressly made payable with interest, which clearly indicates the intention of the parties to be, that though the holder may demand payment immediately, yet he is not bound to do so. It is therefore conceived, that a common promissory note payable on demand, especially if made payable with interest, is not necessarily to be presented the next day after it has been received, in order to charge the indorser; and when the indorser defends himself on the ground of delay in presenting the note, it will be a question for the Merritt vs. Todd, 23 N. Y., (1861.) 'Seaver ts. Lincoln, 21 Pick., 267. Sharswood's ed., 338. jury whether, under all the circumstances, the delay of presentment was or was not unreasonable." Presentment for Payment when the Instrument was overdue at Time of Indorsement. § 33. When a negotiable instrument is indorsed after maturity, payment must be demanded of the payor within a reasonable time, and notice, in the event of a refusal, given to the indorser, in order to charge him-it being regarded as equivalent to one payable on demand.1 The same circumstances and considerations which determine the question whether or not a bill or note payable on demand has become overdue so as to let in equitable defenses by the original parties against the transferree, alike determine the question whether or not the presentment has been in a reasonable time so as to charge the drawer or indorser. Such at least is the doctrine in the United States according to the weight of authority, though there are cases which dissent from it. Some of them maintain that when the note is overdue at the time of transfer, the rule requiring presentment is to be less stringent than where it has some time to run.3 While by others a more stringent rule is applied; and it has been said, that "if the indorsement be made after the note falls due, the demand of payment must be made as if the note fell due the day of the indorsement. How Question of Reasonable Time Determined. § 34. Many of the authorities hold that the question of reasonable Tyler is. Young, 6 Casey, 143; McKinney vs. Crawford, 8 Serg't & R., 351; Patterson vs. Todd, 18 Penn. State, 426, overruling Bank of N. A. vs. Barriere, 1 Yeates, 360; Leavitt vs. Putnam, 1 Sandf, 199; Berry us. Robinson, 9 Johns., 121; Beebe ra. Brooks, 12 Cal., 308; Bishop vs. Dexter, 2 Conn., 419; Goodwin vs. Davenport, 47 Maine, 112; Dwight vs. Emerson, 2 N. H., 159; Levy vs. Drew, 14 Ark., 334; Jones vs. Middleton, 29 Iowa, 188; Benton vs. Gibson, 1 Hill, S. C., 56; Poole rs. Tolleson, 1 McCord, 199; Course vs. Shackleford, 2 Nott & McC., 283; Ecpert es. Condres, 3 Const. R., 69; Union Bank vs. Ezell, 10 Hum., 385; Stothart vs. Parker, 1 Tenn., 269. 2 Field vs. Nickerson, 13 Mass., 131; Berry vs. Robinson, 9 Johns., 121; Sice vs. Cunningham, 1 Cowen, 397; Bishop vs. Dexter, 2 Conn., 419; Course vs. Shackleford, 2 Nott & McC., 283; Kennon vs. McRea, 7 Port. Ala., 175. "A bill negotiated after day of payment, is like a bill payable at sight:" Dehers vs. Harriott, 1 Shaw, 163; 1 Parsons N. & B., 375-6, 382; Bayley on Bills, ch. vii, sec. 1, p. 125. 3 Rugely vs. Davidson, 4 Const. R., (S. C.) 33; Hall vs. Smith, 1 Bay,, (S. C.) 330 McKinney vs. Crawford, 8 S. & R., 351. Nash vs. Harrington, 2 Aiken, 9; Aldis vs. Johnson, 1 Vt., 136. Aldis vs. Johnson, 1 Vt., 136. time is for the jury to determine as matter of fact;' while others maintain that it is matter of law for the court. But neither is strictly correct. It is a mixed question of law and fact in most cases, to be determined upon hypothetical instructions of the court, like all other contested matters. And those authorities seem to us unassailable, which hold that when the facts are few and simple, or are presented upon a special verdict, or demurrer to evidence, it is within the province of the court to determine.3 When they are complicated and doubtful, and are not so presented, they must of course be left for the ascertainment and judgment of the jury, under instructions from the court. SECTION IV. PLACE OF PRESENTMENT. At what Place Presentment shoull be made, when Bill or Note is pay able generally. $35. The presentment of the bill or note for payment should be made at the city, town, or other place in which the acceptor or maker has his home or domicil, or his place of business, provided there be no place designated in the instrument, or agreed upon by the parties as the place where it shall be paid at maturity. If such place is designated or agreed upon, it will be sufficient to make presentment there. And averment of presentment there is always sufficient, without any addition. If the maker or acceptor has both a dwelling house and a business house, in the same city, town, or other place, the presentment may be made at either. And if the maker or acceptor have a dwelling house or domicil in one city, and a place of Field ts. Nickerson, 13 Mass., 131; Hankey v3. Trotman, 1 W. Bl., 1; Goupy e. Harden, 7 Taunt., 159; Straker vs. Graham, 4 M. & W., 721. In case of notes indorsed after maturity, it has been so held in Eccles vs. Ballard, 2 McCord, 388, Gray es. Bell, 2 Rich, 67; and other decisions in South Carolina. Himmelman vs. Hotaling, 40 Cal., 111; Gray us. Bell, 2 Crapo, 15 Pick., 92; Sice vs. Cunningham, 1 Cowen, 408; Vt., 485, Rich., 67; Sylvester vs. See Presentment for Acceptance in Southern Law Review for October, 1872; Darbishire rs. Parker, 6 East, 3; Tindal vs. Brown, 1 T. R., 167 (reasonable notice which stands on same footing); Mellish us. Rawdon, 9 Berg., 416. Wyman vs. Adams, 12 Cush., 210; Taylor vs. Breden, 3 Johns., 136 (case of notice). Anderson vs. Royal Exchange Assurance Co., 7 East, 43; Ball vs. Wardell, Willes, 204. 'Oakey rs. Beauvais, 11 Louis., 487; Mitchell vs Baring, 10 Barn. & C., 11. 'Brent's ex'r us. Bank of Metropolis, 1 Peters; Eason vs. Isbell, 47 Ala., 456 (1868). Hawkeyes. Borwick, 4 Bingham, 136 (13 E. C. L. R.). 'Story on Bills, ? 236. |