Frederick Mortensen Hinch Edward Mills John.

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216; WiUiams v. Parks, 63 Neb.
747, 89 N. W. 395, 66 L. B. A. 759;
First Nat. Bank v. Butler, 41 Ohio
St. 519, 52 Am. Bep. 94. See Brit-
ton V. NiccoUs, 104 U. S. 757, 26
L. Ed. 917.

A bank receiving commercial
paper for collection, by placing it
in the hands of a notary public
for protest, is not liable for fail-
ure of the notary to perform his
duty under the code of Missis-
sippi. The liability rests upon the
notary and his sureties. Tiernan
v. Commercial Bank of Natchez, 7
How. (Miss.) 648, 40 Am. Dec. 83;
Bowling ▼. Arthur, 34 Miss. 41.

WDavey v. Jones, 42 N. J. lU
28, 36 Am. Bep. 505. See BriU t.
Jefferson Bank, 159 N. Y. App.
Div. 461, 144 N. Y. Supp. 539.
Henderson v. Smith, 26 W. Va.
829, 53 Am. Bep. 139.

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In one case, in a state where the notary is regarded as an
official rather than an agent, a bank was held liable, but the
notary in question was an officer of the bank also.**


§ 421. Definition of Acceptance. — ^An acceptance of a bill
of exchange is an engagement to pay the bill in money when
due. Such acceptances may be absolute, when a positive en-
gagement is made to pay the bill according to its tenor; con-
ditional, when an undertaking is made to pay the bill on a
contingency; partial, when the acceptance varies from the
tenor of the bill ; qualified, when the acceptance is either con-
ditional or partial; and supra protest, when the acceptance
is after protest for nonacceptance by the drawee, for the honor
of the drawer, or a particular indorser. Acceptance may also
be express or implied.**

§ 422. Necessity of Presentment for Acceptance.— Present-
ment for acceptance is necessary in certain cases to charge the
drawer and indorsers, as where the bill is payable after sight,
or in any other case where such presentment is necessary in
order to fix the maturity of the instrument; or where the bill
expressly stipulates that it shall be presented for acceptance;
or where the bill is drawn elsewhere than at the residence or
place of business of the drawee." In other cases presentment
for payment at maturity is sufficient. When not required,
presentment for acceptance may be made for the purpose of
obtaining as soon as possible the liability of the drawee as an

MWood Biver Bank t. Tint present it for acceptance within a

Nat. Bank, 36 Neb. 744, 55 N. W. reasonable time. If he omits to do

239. so, the drawer and prior indorsers

5t Gye. Law Diet. are discharged. If payable other-

68 Uniform Negotiable Instm- wise, it may be presented at any

ments Law, || 143-151, post, time before maturity. Strong &

p. 309. See also Allen v. Snydam, Wiley Bros. v. King, 35 HI. 9, 9

20 Wend. (N. T.) 321, 32 Am. Dec. Am. Dec. 336; Pryor v. Bowman,

555; Walker v. Stetson, 19 Ohio 38 Iowa 92; Walsh v. Dart, 23 Wis.

St. 400, 2 Am. Bep. 405. 334, 99 Am. Dec. 177; Wallace v.

The holder of a bill of exchange, Agry, 4 Mason (U. S.) 336, Fed.

payable at or after sight, is bound Cas. No. 17096.
either to negotiate it away or to

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acceptor, and to give, in case of nonacceptance, a right of im-
mediate recourse against the drawee and the indorsers.**

§ 423. Sufficiency of Presentment for Acceptance.— In order
to charge the parties secondarily liable, presentment of a bill
for acceptance must be made by or on behalf of the holder;
within a reasonable time (or negotiated within a reasonable
time) on a business day before the instrument is overdue; at
a reasonable hour ; and to the drawee, his agent in that behalf,
or his personal representative.**

The party who must make presentment must be the holder
of the bill, or some one who acts in his behalf.** Any person
in possession of a bill of exchange may present it for accept-



There is no exact date on which presentment must be made,
but it must be made before the instrument is overdue, on a
business day. Such day must fall within a reasonable time
from the time the instrument is delivered to the payee, or
within a reasonable time from the last transfer.** The holder
must use due diligence,** and delay of more than a year in the
proper presentation of a draft agreed to be accepted is unrea-

The hour of presentment must be reasonable, or if accept-
ance is by or at a bank, during banking hours. What is a rea-
sonable hour depends on the particular customs of the com-
munity. What might be a reasonable hour in a rural district
might not be such in a large city.*^

Presentment must be made to the drawee personally, or to
some person who has authority to accept or refuse acceptance
on his behalf.** If there are several drawees, acceptance must
be made to all, except where one or more are agents for the
others in that behalf or are partners.

i4Ba78'Oommerei&l Law, vol. 8, MBaer ▼. Liehten, 24 HL App.

p. 122. 311.

M BajB ' Commereial Law, vol. 2, BOFiwt Nat. Bank of Lacon ▼.

p. 123. Benslej, 2 Fed. 609.

M Bays 'Commercial Law, vol. 2, ^l Bays ' Commercial Law, vol. 2,

p. 123. pp. 119, 124.

Vt Freeman v. Boynton, 7 Mass. ^ Bays ' Commercial Law, vol. 2,

483. p. 124; Sharps v. Drew, 9 Ind. 2S1.

Bt Bays' Commercial Law, voL 1,
p. 123.

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§ 424]



§ 424. Manner of Acceptance.— An acceptance mast be in
writing and signed by the drawee. It must not express that
the drawee will perform his promise by any other means than
the payment of money .•• If the holder demands it, acceptance
must be on the face of the bill; otherwise he may treat the
bill as dishonored. But a bill may be accepted by a separate
paper, in which case it will be binding only in favor of one
who received the bill for value.** An absolute promise to ac-
cept a bill thereafter to be drawn will operate as an accept-
ance in favor of any one who on the faith thereof received the
bill for value.^ A letter written within a reasonable time,
describing a biU of exchange and promising to accept it, is,
if shown to the person who afterwards takes it on the strength

BSBajt'Oominereiftl Law, vol. 2;
p. 73.

An oral acceptance was binding
in nUnoiB before the Negotiable
Instruments Act took effect. Ed-
ward Hines Lumber Co. v. Ander-
son, 141 m. App. 527; Scudder v.
ITnion Nat. Bank of Chicago, 91
IT. S. 406, 23 L. Ed. 245.

64 Bays 'Commercial Law, vol. 2,
p. 74.

An acceptance may be: First —
In writing on the biU, or on a
separate paper. Second — Oral,
implied from acts of the drawer.
Third — A written or verbal prom-
ise to accept, either before or af-
ter the existence of the bilL
Time — Such promise must be made
within a reasonable time before or
after the issue of the bill. It
must specify the bill to be drawn
so as to distinguish it from any
other. Promise — ^It must be taken
by the holder on the faith of
iuch promise. Coffman v. D. 0.
Campbell & Co., 87 lU. 98;
Sturgcs V. Fourth Nat. Bank of

Chicago, 75 HI 595; Nelson v.
First Nat. Bank of Chicago, 48
111. 36, 95 Am. Dec. 610; First Nat.
Bank of Chicago v. Pettit, 41 111.
492; Jones v. State Bank of Iowa,
34 HI. 313; Scudder v. Union Nat.
Bank of Chicago, 91 IT. S. 406, 23
L. Ed. 245.

Acceptance is usually indicated
by writing across the face of the
bill the word "Accepted," adding
the date and party's signature. A
promise in writing to accept a bill
of exchange will not, in law,
amount to acceptance, unless the
bill was taken on the strength of
the letter. Kennedy v. Geddes ft
Co., 8 Port. (Ala.) 263, 33 Am.
Dec. 289; Mayhew v. Prince, 11
Mass. 54; Goodrich v. Gordon, 15
Johns. (N. Y.) 6; McEvers v. Ma-
son, Hodgson is Co., 10 Johns.
(N. Y.) 207; Parker v. Greele, 2
Wend. (N. Y.) 546, aff'd 5 Wend.
(N; Y.) 414.

M Bays 'Commercial Law, vol. 2,
p. 74.

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of tht letter, a virtual acceptance, binding the person makinff
the promise.**

§ 425. Presumption of Aeeeptance from Retention of Bill —

The Uniform Negotiable Instruments Act provides that where
a drawee to whom a bill is delivered for acceptance destroys
the same, or refuses within twenty-four hours after such de-
livery, or within such other period as the holder may allow,
to return the bill accepted, or nonaccepted to the holder, he
will be deemed to have accepted the same.*^ The drawee has
the right to a reasonable time, usually twenty-four hours, to
ascertain the state of his accounts between himself and the
drawer. After the expiration of such time, the holder has
the right to know the drawee's attitude. The concensus of
authority is, however, that the duty rests on the holder to
demand either acceptance or return of the bill, and that mere
inaction on the part of the drawee has no efFect.**


§ 426. Necessity of Presentment for Payment at Matnrity.

— ^Presentment of a note to the maker thereof, or of an ac-
cepted bill to the acceptor thereof, at its maturity, is not nec-
essary to fix the liability of such maker or acceptor. But if
a place of payment is provided in the instrument, and the
party liable thereon has funds there at maturity to pay it, but
no presentment is there and then made, that will bar further
interest and costs, and the right to have the instrument paid
at such place. As to the parties secondarily liable, present-
ment for payment at maturity is necessary to charge them,
except where excused or waived.* The parties secondarily
liable are not discharged, notwithstanding lack of present-
ment, when the circumstances excuse such presentment Ac-

•6 Kennedy v. Geddes ft Co., S tention of the bill is not aeeept-

Port. (Ala.) 263, 33 Am, Dee. 289; ance."— Ed.

Coolidge V. Payson, 2 Wheat. (IT. «t Bays 'Commercial Law, vol. 2,

6.) 66, 4 li. Ed. 185. p. 75, citing Westberg v. Chicago

67 Uniform Negotiable Instm- Lumber is Coal Co., 117 Wis. 589,

ments Law, f 137, post, p. 308. 94 K. W. 572.

Note: Illinois has omitted this 6i Bays 'Commercial Law, voL 2,

section in enacting the Act. Wis- pp. 115| 116L
consin has added that ''mere re-

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cordingly presentment *is not required where the drawer has
no right to expect or require the drawee or acceptor to pay,
where an instrument is made or accepted to accommodate an
indorser, where after the exercise of reasonable diligence it
cannot be made, where the drawee is a fictitious person, or
where the parties entitled to presentment waive it by word
or conduct.^

§ 427. Sufficiency of Presentment.

g 428. — ^By Whom Presentment Must Be Hade. — ^Present-
ment for payment must be made by the holder of the instru-
ment, or his agent in that behalf. Possession of a negotiable
instrument payable to bearer, or properly indorsed, shows
prima facie authority to receive payment. If the holder is
dead, his personal representative should make presentment.''*

§ 429. — ^Time. — ^The date of presentment is the date of ma-
turity of the instrument. Paper matures without grace on the
date specified for payment, as days of grace, which were al-
lowed at the common law, have been abolished in most states.^
Demand pa^er must be presented within a reasonable time to
charge the drawer or indorsers.''^ And where no time is spec-
ified, the law implies that it must be presented within a rea-
sonable time. More than a year is unreasonable.''* What
constitutes reasonable time depends on the facts in each partic-
ular case, and must be judged accordingly.'''^ A reasonable
time for presentment for payment of a check, where all the
parties reside in the same city, would be until the close of
banking hours of the next day after the giving of the check.^®

TO Bays 'Commercial Law, vol. 2, 7t Bays ' Commercial Law, vol. 2,

pp. 120, 121. p. 118.

71 Bays 'Commercial Law, vol. 2, 74 First Nat. Bank of Lacon t.

p. 117. Bensley, 2 Fed. 609.

7t Bays' Commercial Law, vol. 2, 75Monteliu8 v. Charles, 76 lU.

p. 118. 303.

In the absence of statutory pro- 76 Brown v. Schintz, 98 HI. App.

vision to the contrary, a bill pre- 452, citing Gage Hotel Co. v.

sented for payment on the last day Union Nat. Bank, 171 HI. 531, 49

of grace is presented in proper N. E. 420^ 39 L. B. A« 479, 63 Am.

time. Beese v. Mitchell, 41 HL St. Rep. 270; Bickford v. First

365; Elston v. Dewes, 28 HL 436; Nat. Bank of Chicago, 42 HI. 238,

Cook V. Benick, 19 HL 598. 89 Am. Dec. 436; Mann v. Bnrch,

25 HI. 85.

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The holder's neglect to present for payment at maturity, only
affects his remedy against the drawer in case of the latter 's
insolvency occurring in the meantime, or some event to the
prejudice of the drawer." A note payable Feb. 1, 1839, pre-
sented at bank and protested June 9, 1842, did not discharge
the maker in the absence of proof that he had funds there at
the appointed day, nor that he has sustained any loss or in-
jury by the delay in presentment.''*

The hour of presentment must be a reasonable hour, or if
payable at a bank, during banking hours, unless the party
liable has no funds there, in which case presentment before
the bank is closed is sufficient.''* When not presented at a
bank it may be presented any hour before bedtime.** A note
presented during business hours, at the place of payment, and
payment demanded, which the maker refused, the protesting
being made on the same day was not premature.**

The notary's protest is competent evidence of its nonpay-
ment. The law of the place where the bill is payable governs
as to time of presentment and payment.**

§ 430. — ^Excuses for Delay. — ^An impossibility in presenting
for payment is about the only excuse admissible. The inquiry
will always be whether, under the circumstances, due diligence
has been used. These circumstances must be stated in the
certificate, that the court and jury may see whether there has
been due diligence. There must appear some fact to excuse
demand, as that the maker could not be found at his last
place of business, or that he had absconded, left the state, his
place of residence deserted, or that the indorser, and others
likely to know, had been inquired of and could not tell, or
some other fact as recognized in the books. The liability of
the indorser depends upon the diligence of the holder in de-
manding payment of the maker. The question of diligence

Tt Springfield Marine k Fire Ins. 80 Skelton t. Dastin, 92 lU. 49.

Co. V. Tincher, 30 HI. 399. M Guignon t. Union Trust Co.,

7« Bradford v. Cooper, 1 La. 53 111. App. 581, aff'd 156 lU. 135,

Ann. 325; Wallace v. McConnell, 40 N. E. 656, 47 Am. St. Kep. 186.

13 Pet. (U. S.) 136, 10 L. Ed. 95. SSWooley v. Lyon, 117 HL 244,

79 Bays' Commercial Law, vol. 2, 6 N. E. 885, 57 Am. Bep. 867;

p. 119. Pierce ▼. Indseth, 106 U. S. 546,

27 L. Ed. 254, 1 Sup. Ct 418.

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is one of law and fact, to be determined by the court and jury
and not to be certified by the notary.^

§ 431. — ^Place of Presentment. — ^If tliere is a place of pre-
sentment specified, of course that governs, but if no place is
specified, the instrument must be presented at the address given,
or, if none, at the usual place of business or residence, or in
any other case where the party can be found, or at his last
known place of residence.** It has been held that if, after
the making and indorsement of the note, the maker absconds
or moves out of the state, the holder is not bound to follow
him to make the demand.**^ If demand at the place designated
in the contract became impossible, as if the bank had ceased
to exist, then demand at the place is excused. It is the exist-
ence, or nonexistence of the bank, as a place of payment, that
excuses the want of demand at that place, and not the state
of its assets, nor their location, nor the amount or character
of its business. When a particular place of payment is agreed
upon, and the demand is not excused or made at such place,
no personal demand of the maker can in any way fix a liabil-
ity on the indorser of the paper sued upon. If a drawer of
a note or acceptor of a bill, having a regular place of business,
is absent from it, or has absconded before the day of pay-
ment, or if his house be closed, notice of such fact is equiv-
alent to notice of the demand and dishonor of the paper.*^
Where the maker and indorser of a bill of exchange reside
in one state and the payment is to be made in another state,
the parties elect to make the bill foreign and protest must be
made where it is payable.*^

§ 432. — ^To Wliom Presented.— Presentment must be made
to the person himself, or to his agent, or if he is absent or in-

ttCockrill ▼. Loewenstine A or wherever they emn be foand.

Bro., 9 Heisk. (Tenn.) 206. No formal demand is necessary

S4 Bays * Commercial Law, yol. 2, where the bill is payable at a

p. 119. bank. Wing t. Beach, 31 HI. App.

If not indicated on the instm- 78.

meiit where it is payable, then ft M Anderson y. Drake, 14 Johns,

should be presented at the party's (N. T.) 114.

place of bnsiness daring his bosi- MBynnm y. Apperson, 9 Heisk.

ness hours. If they have no place (Tenn.) 032.

of business, then at the dwelling, S7 Warren y. Warren, 16 Me. 259.

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accessible, then to any person found at the place where pre-
sentment is made. If the person liable is dead, his personal
representative must be sought out, if with reasonable dili-
gence he can be found.** In the absence of proof to the con-
trary, it is sufficient to show a demand for payment of the
drawer and his refusal.*^

§ 433. —Manner of Presentment.— The party called upon to
pay an instrument is entitled to have it exhibited, and due
presentment is not made unless the instrument is exhibited.
It has been held, however, that if the instrument is lost or
mislaid, presentment of a copy with a promise of reasonable
indemnity is a good presentment to charge the drawer and

§ 434. —Bank's Duty to Apply Funds of Party Liable.— If

an instrument is payable at a certain bank, and on the date
of maturity the party liable thereon has funds on deposit at
such bank, the Negotiable Instruments Act provides that the
fact is equivalent to an order upon the bank to pay the in-
strument, if there are funds sufficient for that purpose.** This
was formerly a disputed question and courts have held both
ways on the matter.


§ 436. Definition; Nature and Object.— Protest is a notarial
act, made for want of payment of a promissory note, or for
want of acceptance or payment of a bill of exchange, by a
notary public, in which it is declared that all parties to such

tt BayB' Commercial Law, Yol. 2, personally acquainted with the

p. 119. party in charge where the paper

Demand may be made of the is payable. Bank of Ck>oper8town

maker of the note, or of the ao- v. Woods, 28 N. Y. 561.

ceptor of the bill, or of their res- •• Hunt v. Maybee, 7 N. T. 266.

ident agent if the parties them- ^ Bays ' Commercial Law, voL 2^

selyes cannot be conveniently p. 120.

reached. The maker of a note 91 Negotiable Instruments Law,
should be present personaUy or by I 87, post, p. 303.
agent at the place of payment, Note: lUinois and Nebraska
prepared to make the payment. It hare omitted this section in em-
is not necessary that the person acting the statute. — ^£d.
ma >i^g the presentment should be

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I 437] KBGOTtABLfi tKSTR0MBKT8. 275

instruments will be held responsible to the holder for all dam-
ages, exchanges, re-exchanges, etc .•• The term is not appli-
cable, technically, to promissory notes, but by general usage
includes all acts necessary by law to charge an indorser. In
business, when a note is said to be protested, something more
is understood than the ofScial declaration of a notary. A re-
quest by an indorser to the indorsees **not to protest, that
he would waive the necessity thereof," includes all acts pop-
ularly accepted by the term. The only thing necessary for
the indorsees to do is to demand payment of the maker and
give notice to their indorser.®' It includes all that is neces-
sary to hold the indorsers.** The protest is evidence of de-
mand and protest.** This is the formal notice to the world
of the dishonor of a negotiable instrument, notice of which
is sent to each and every party interested, either as maker,
drawer, indorser or acceptor of it. The statutes of Illinois
defining the duties of notary public *' protests'* are but declar-
atory of their duties in this state upon the subject.*®

§ 436. Necessity of Protest. — Any bill which appears on
its face to be a foreign bill must be protested for nonaccept-
ance or nonpayment as the case may be, else the drawer and
indorsers will be discharged.*^ Inland bills and promissory
notes do not need to be protested, but often are, to furnish
evidence of due presentment and giving notice of dishonor.**

§ 437. Who Authorised to Make Protest.— Protest may be

9S0ye. Law. Diet. the omissioii; but the omission to

•SCoddington y. Davis, 1 N. Y. allege protest in an action, if an

180. objection at all, is only one of

•4 City Sav. Bank v. Hopson, 53 form. It cannot be reached by

Conn. 453, 5 Atl. 601. general demurrer. Hart v. Otis,

95 Dickins v. Beal, 10 Pet. (U. 41 ID. App. 431. It must be neces-
8.) 572, 9 L. Ed. 538. sary in order to fix the indorser 's

96 8kelton v. Dustin, 02 Bl. 49. liability, otherwise he cannot be

97 Bays ' Commercial Law, vol. 2, subjected to costs of protest. Mc-
p. 128; Uniform Negotiable In- Kay v. Hinman, 13 Neb. 33, 13 N.
struments Law, | 152 et Meq., W. 15.

post, p. 310. 9S Bays * Commereial Law, yoL 2,

The protest of a foreign bill p. 128.

must be made in order to charge An Inland bill need not be pro-

the drawer or indorser, unless tested. Smith t. Ourlee, 59 Dl.

some good excuse can be made for 221.

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made by a notary public, or by any respectable resident of
the place where the bill is dishonored, in the presence of two
or more credible witnesses.** Almost universally, protest is
made by a notary public. The other provision is made in case
a notary is not available.* Such protest must be made by the
notary in person.* A notarial certificate of protest stating
that the presentment and demand were made by the notary,
when they were made by his clerk, voids the certificate.*

§ 4S8. Time, Place and Blanner of Protest.— The details of
making protest are fully contained in the Negotiable Instru-
ment Act.* Usually such protest is made on the day of dis-
honor of a bill, at the place where it is dishonored, or where
it is payable.* When an acceptor has been adjudged bank-
rupt or insolvent, or has made an assignment for benefit of
creditors, before a bill matures, the holder may cause the bill
to be protested for better security against the drawer and

The law of the place where the notes are payable govern
as to time and mode of presentment for payment, manner of
process and giving of notice.'' Where payment is demanded
at the place the note is, by its terms, to be paid, other demand
upon the maker is not required.* The notary *s certificate of
protest is presumptive evidence of presentment during the

M XJnif orm Negotiable Instra-
ments Law, | 154, post, p. 311.

1 Bays' Commercial Law, yoL 8,
p. 129.

• Bays' Oommereial Law, vol. 8,
p. 129.

Where protest is necessary, the
notary most present the bill in
person, unless power has been
given to him to substitute another
in his place or where custom war-
rants a presentment by deputy.
Oribbs v. Adams, 13 Gray (Mass.)
597; Commercial Bank v. Vamum,
49 N. Y. 269. A notary cannot
delegate his power to protest.
Cole V. JesBup, 10 N. Y. 96; Hunt
V. Maybee, 7 N. Y. 266.

• Gawtry v. Doane, 51 N. Y. 84.

Negotiable Ldstru-
II 155, 156, post,

4 Uniform Negotiable Instru-
ments Law, I 153 et »eq., post,
p. 310.

i XJnif orm
ments Law,
p. 311.

6 Uniform Negotiable Instru-
ments Law, I 158, post, p. 311.
See also Ocean Nat. Bank v. Wil-
liams, 102 Mass. 141; Jaccard ▼.
Anderson, 37 Mo. 91.

TWooley V. Lyon, 117 DL 244,
6 N. B. 885, 57 Am. Eep. 867;
Pierce v. Indseth, 106 U. S. 546,
27 L. Ed. 254, 1 Sup. Ct. 418.

8 Guignon v. Union Trust Co., 53
HL App. 581, aff'd 156 lU. 135, 40

Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 33 of 50)