Schofield v. Bayard

3 Wend. 488 | N.Y. Sup. Ct. | 1830

By the Court,

Savage. Ch. J.

Where a bill is accepted supra protest, the holder must demand payment, and if refused, notice of such refusal must be given. Such acceptance is a conditional engagement; and to render such acceptor absolutely liable, the bill must be duly presented for payment to the drawee, and protested in case of refusal. (Chitty on Bills, 242. 16 East, 391.) The above authorities say the payment must be demanded of the drawees; but if the bill is payable at a particular place, payment must be demanded at that place. In this case the only real question is, whether the holder is excused by reason of the mistake in the post office at Liverpool, from not making demand in season. It is proved in this case that the drawees were bankrupt when the bill was drawn, and had no funds of the drawers at that time or since, and that at no time would they have accepted or paid the bill. It does not appear, however, that the bill would not have been paid by the acceptors had it been regularly demanded. In the case of Patience v. Townley, (2 Smith, 223,) a bill drawn on Leghorn, due the 10th September, 1800, was not demanded till the 31st December; Leghorn being then occupied by the enemy, or in some such critical situation it was impossible to present it in season. The plaintiff had a verdict, which the court refused to set aside} Lord Ellenborough saying; “ Duly presented, is presented according to the custom of merchants, which necessarily implies an exception in favor of those unavoidable accidents which must prevent the party from doing it within the regular timeand it was left to the jury to say whether, from .the situation of the country, it was impossible for the plaintiff to present it in due time. That cause presentéd a case of impossibility; but this case presents no impossibility, if due diligence had been used. The plaintiffs should not have sent ^ to Liverpool at all. It is true, that after the letter containing it had been left at Liverpool, on the 10th November, it could not have reached London in season ; but it was the fault of the plaintiffs to have parted with the bill in the manner they did. Instead of sending it to Liverpool, they should have sent it to London, and then it would have been in season, and probably would have been paid.

. I am of opinion that, by the law merchant, payment should have been demanded in London on the 12th of November; and that not having been done, and there being no impossibility to prevent it but what is attributable to the want of due diligence on the part of the holders, the defendants are legally discharged, and are entitled to judgment.