were expressed payable at a bankers, or other place, "only and not otherwise or elsewhere," it should be a qualified acceptance, and the acceptor should not be liable except upon due demand at the place named.

This statute, it will be observed, did not apply to promissory notes; and the liability of the drawer or indorser of a bill remained unchanged. Where the place, therefore, is mentioned in the body of a note, presentment must, in England, be averred and proved,3 but if the place were mentioned in a memorandum beneath the maker's signature, it would be regarded as directory only. Where a bill is drawn with the expression of a particular place only, and not elsewhere, in the body, and accepted without further expression in the acceptance, it would be within the rule of the statute making it a qualified acceptance." And the words, "and not elsewhere,” alone would be sufficient to incorporate the qualification.

6

The same principles apply where the place of payment is specified in the body of the bill, and the acceptance is simply according to its tenor; and it will be necessary, in order to charge the drawer to present the bill at the particular place if one be named.7

Presentment at a particular place in the United States.

§ 42. The Supreme Court of the United States, and almost all the courts of last resort of the several States, have coincided with the views presented by a majority of the Judges in the case of Rowe vs. Young (quoted in a note to the foregoing paragraph), and differed from the decision of the House of Lords in that case; and in the United States it may be considered as settled, that where a note is made payable at a particular banker's or other place, or a bill is drawn or accepted, payable in like manner, it is not necessary, in re

'Emblen vs. Dartnell, 12 M. & W., 830.

3 Sanderson vs. Bowes, 14 East., 500.

2 Gibb vs. Mather, 8 Bing., 214.

*Sanderson vs. Judge, 2 H. Bl., 509; 1 Pars. N. & B., 428; but see post, as to rule in U.S.

7

Halstead rs. Skelton, 5 Q. B., 86.

6

Higgins vs. Nichols, 7 Dowl., 551. Boydell vs. Harkness, 3 C. B., 168 (54 E. C. L. R.); Selby 18. Eden, 3 Bing., 611; 11 J. B. Moore, 511; Fayle vs. Bird, 6 B. & C., 531; 2 Car. & P., 303; 9 Dow. & R., 639; see the decisions as to Promissory Notes; Byles on Bills (Sharswood's ed.), 342; 1 Pars. N. & B., 308, note Z.

* Wallace vs. McConnell, 13 Peters, 136; Armistead vs. Armistead, 10 Leigh, 525; Watkins vs. Crouch, 5 Leigh, 522; Ruggles vs. Patten, 8 Mass., 480; Caldwell vs. Cassady, 8 Cowen, 271; McNairy vs. Bell, 1 Yerger, 502; Thiel vs. Conrad, 21 La. An., 214; James vs. Manning. Kent and Story inclined to the English rule: Story on Notes, 227, 229; 3 Kent Com., 99; Picquet vs. Curtis, 1 Sumner, 478. Toden vs. Sharp, 4 Johns., 183.

spect to the maker or acceptor, to aver or prove presentment or demand of payment at such place on the day the instrument became due or afterwards, in order to maintain an action against him.' The only consequence of neglect of the holder to present, as said by Presi dent Tucker in Armistead vs. Armistead, 10 Leigh, 525,2 is "that the maker, if he was ready at the time and place to make the payment, may plead the matter in bar of damages and costs; but he must, at the same time, bring the money into court which the plaintiff will be entitled to receive. A further consequence, indeed, might follow, if any loss had been sustained by his failure to present; but this must be set up as matter of defense."3

Liability of Indorser and Drawer.

§ 43. In respect to the indorser of a bill or note, or the drawer of a bill, payable at a particular bank or other place, the rule is different. He is not the original debtor, but only a surety. His undertaking is not general, but conditional upon due diligence being used against the principal debtor, and such diligence requires presentment at the place specified, where it is to be presumed that funds have been provided to meet the bill or note at maturity.*

Where the instrument is payable "on demand," or "on demand after a certain time."

§ 44. A distinction has been taken by some of the courts in respect to bills and notes payable "on demand," or payable "on demand after a specified time;" and the opinion expressed that in such cases averment and proof of demand are necessary as well against the acceptor or maker as against the drawer or indorser. In Virginia, the court, while deciding according to the current of American authority in respect to a note payable at a fixed time, expressly restricted its application, and Stanard, J., said: "This decision does not embrace the case of a note or obligation payable in terms on demand, at a particu

O Contrary decisions have been rendered in a few cases in the United States. In Indiana, Palmer vs. Hughes, 1 Blackford, 328; Gilly vs. Springer, Ib., 257; Alden vs. Barbour, 3 Ind., 414. The decisions in Louisiana, formerly of the same tenor, have been overruled, and the general doctrine now prevails there also.

'Reaffirming Watkins vs. Crouch, 5 Leigh, 522.

3 To same effect, see Story on Bills, ? 356.

Bank U. S. vs. Smith, 11 Wheat., 171; Watkins vs. Crouch, 5 Leigh., 522; Shaw vs. Reed, 12 Pick., 132; Nichols vs. Pool, 2 Jones, N. C., 23; Lawrence vs. Dobyns, 30 Mo., 196; Ferner vs. Williams, 37 Barb., 9; Chitty on Bills, (13th Am. ed.) 409; Story on Notes, ? 230.

"Armistead vs. Armistead, 10 Leigh., 521.

lar place after the lapse of a specified time. In such cases it would probably be held, that there is no default of the maker or acceptor, until such demand be made, and consequently, that no action would accrue to the payee until such demand should be made."

In England, it was said by Lord Ellenborough, that in such cases "the time of payment depends entirely on the pleasure of the holder of the note," and that consideration seemed to him to render it impracticable for the maker or acceptor to set up the defense of readiness to pay. The Supreme Court of the United States has followed the same line of opinion, Thompson, J., saying: "Where the promise is to pay on demand at a particular place, there is no cause of action until the demand is made, and the maker of the note can not discharge himself by an offer of payment, the note not being due until demanded."

§ 45. Striking as these views may seem, they do not appear to us to bear analysis as affording ground for departure from the general principle. A bill or note payable on demand is payable immediately --and if on demand after a certain time, immediately upon that time arriving. Although payable at a particular place, the payor may, if he apprehends loss by delay, or desires to discharge it, pay it anywhere. And the mere circumstance that it might be more difficult for the payor to show a loss resulting from a failure to present when his liability was continuing to be always ready, than when he is only required to shoulder the responsibility of being ready at a fixed time, does not seem to us sufficient to change the rule. He has the advantage of not being subjected to a protest until demand is made; he may pay at any time if he pleases; he may still show loss if any occurs. Suit brought is itself a demand; and as presentment at the particular place, although it be expressed, is no condition precedent as to him, we can not perceive how the words "on demand," which relate to time and not to place, can impliedly create a condition which even express words without the addition of "not elsewhere" do not create. The difficulty of the defense does not change the principle which requires it; and the cases which so determine seems to us to adopt the true philosophy of the subject.3

$ 46. In respect to bank notes, it has been held that when payable

1 Sanderson vs. Bowes, 14 East, 500.

'Wallace vs. McConnell, 13 Peters, 136; Savage, C. J., to same effect in Caldwell vs. Cassidy, 8 Cowen, 271, but overruled by Haxtun vs. Bishop, 3 Wend., 1, same judge.

* McKinney vs. Whipple, 21 Maine, 98; Gammon vs. Everett, 25 Maine, 66; New Hope D. B. 3. Perry, 11 Ill., 467; Cook vs. Martin, 5 Smedes & M., 379 (note payable on demand five months after date).

on demand-or on demand after a certain time-at a designated place, the demand must be averred and proved against the bank; and they have been distinguished from individual notes by some of the cases. But there are also express decisions the other way; and we can perceive no sufficient reason for the distinction. Loss, if any, may be shown by the bank as well as by the individual.

When payable at either of several places.

§ 47. If a bill of exchange be drawn payable at either of two places, and is accepted accordingly, as for example, if drawn payable at Maedstone or London, the holder has his choice to present it at either place for payment; and the like rule applies to a note made payable at either of two places. If the bill or note be not duly paid at the place where it is presented, the holder may protest it and give notice to the drawer and indorsers; who will be bound by its presentment and dishonor at the place of his election; although if presented at the other place it would have been duly paid; for in such cases all the parties agree to pay the bill or note upon due presentment at either place.1

Bills and Notes payable at either of several Banks.

§ 48. Sometimes a promissory note is made payable at any or either of the banks in a particular place, by some such expression as "payable at bank in Boston," or "at either of the banks in Boston," or "at any bank in Boston." In all such cases, the stipulation as to the place of payment is understood to be for the accommodation of the payee or holder, who is given the right to elect the bank at which the note should be presented, in order to charge the indorsers; and if upon presentment at any or either bank in the place named, payment is refused, the indorsers as well as the maker, are bound. The maker's promise is to pay the note at any of the banks in the place, and the duty is imposed upon him to look at all the banks for it, or provide funds to pay it at all of them when it is due.

§ 49. A bill of exchange accepted, payable in like manner, stands upon the same footing as a promissory note, and the drawer and in

1 Bank of N. C. vs. Bank of Cape Fear, 13 Iredell, 75.

Dougherty vs. Western Bank, 13 Ga., 87.

Montgomery vs. Elliott, 6 Ala., 701; Haxtun vs. Bishop, 3 Wendell, 1. Beeching vs. Gower, 1 Holt., 313; Story on Bills, 354; Story on Notes, 231. Malden Bank vs. Baldwin, 13 Gray, 154.

Page us. Webster, 15 Maine, 249; Freeman's Bank vs. Ruckman, 16 Grat., 126. Langley vs. Palmer, 30 Maine, 467.

8 Malden Bank vs. Baldwin, 13 Gray, 154, and cases cited above.

dorsers, as well as the acceptor, will be bound if it be presented at any or either of the banks in the place named.' This principle applies to large cities with many banks, as well as to small cities with few; and the opinion once intimated that where there are several banks in a large city the holder must give notice to the promisor where the paper is," may be regarded as overruled.

It has been urged against this doctrine in every case which has adopted it, that the holder should give notice at what particular bank he elected to make the demand. But it has been well answered that "to require the holder to give such previous notice would not only defeat the object of relieving him from trouble and risk, but would subject him to much greater than if the bill or note were made payable at one bank only;" and that "if the parties wish for more certainty as to the place of payment, let them be more explicit in the bill."

When Drawee or Acceptor reside in one Place, and Bill is payable in another.

§ 50. Where the drawee of a bill resides in one place, and it is drawn payable in another place, it would be sufficient to present the bill for acceptance to the drawee at the place where he resides, and if acceptance were refused, it might be there protested. And if the bill, not accepted, were presented to the drawee at his place of residence for payment, and payment refused, and there is no particular place designated in the bill for presentment, it would be sufficient, although the bill was payable in a certain city. Thus, where a bill was drawn in Liverpool and was payable in London, and was protested for non-acceptance, and also for non-payment in Liverpool, where the drawee resided, Kent, C. J., said:

"A general refusal to pay was a refusal to pay according to the face of the bill. It was equivalent to a refusal to pay in London. We do not mean to say that the demand for payment at Liverpool was indispensable. The bill being payable at London, it would have been sufficient for the holder to have been there when the bill fell due, ready to receive payment. In the present case, a protest at London, or a demand and protest at Liverpool, were sufficient, and the holder might take either course." So, if the bill, drawn upon the drawee in one place and

Jackson vs. Packer, 13 Conn., 342.

2 Langley vs. Palmer, 30 Maine, 467.

North Bank vs. Abbot, 13 Pick., 465; Shaw, C. J., expressed this opinion, but the question was not directly before the court. *Page us. Webster, 15 Maine, 24, Shepley, J. Jackson vs. Packer, 13 Conn., 342, Waite, J. Mason es. Franklin, 3 Johns., 202.

'Mason vs. Franklin, 3 Johns., 202.