Hart v. Smith , 15 Ala. 807 ( 1849 )

DARGAN, J.

This was an action of assumpsit, on a bill of exchange, drawn by the defendant, in favor of the plaintiff, on Desha & Smith, dated the 26th February, 1846, payable at sight. The only evidence introduced to charge the drawer, was the bill, and protest, showing a demand of payment made of the drawees, on the 4th of March, 1846, and notice to the drawer. The court charged the jury, that the plaintiff could not recover.

A bill, payable on demand, or at any fixed time, need not be presented for acceptance, but a demand of payment, at the time the holder has the legal right to demand payment, is all that is necessary. And if the bill be not paid, the holder may protest it for non-payment, and on his giving due notice to the drawer and indorsers, their liability is fixed. Evans v. Bridges, 4 Porter, 345; 1 Peters, 25; 2 ib. 170; Chitty on Bills, 10th ed. 272. But when the time of payment is uncertain, and a presentation of the bill is necessary, in order to ascertain, and fix, the time of payment. As, if the bill be payable at a number of days after sight, then the bill must be presented for acceptance before payment is demanded. Story on Bills, § 112, 227; Chittyon Bills, 10th ed. 272; Bayley on Bills, 5th ed. 217, 218.

It is contended, that a bill payable at sight, is entitled to days of grace, and therefore it must be presented for acceptance, before payment can be demanded.

I am free to confess, that my 'opinion, untrammeled by authority, would incline me to hold, that a bill of exchange,' _'payable at sight, is not entitled to days of grace, and that payment may be demanded on presenting the bill; which, if refused, would authorize the holder forthwith to have it protested for non-payment, and, on giving notice to the drawer, to hold him liable. But the law seems to be settled otherwise. Judge Story, in his treatise on Bills, says, “ that days of grace are allowed on all bills, whether payable at a certain time after date, after sight, or even at sight. And although there has been some diversity of opinion, whether bills payable at sight, are entitled to days of grace, it is now settled by the decisions, both in England and America, that days of grace are allowable on such bills.” § 342, p. 429. To the same effect, see Chitty on Bills, 10th ed. 376; Bayley on Bills, 5th ed. 244, 245; Selwyn’s N. P. 9th ed. 351; Coleman v. Sayre, 1 Barnard, 303; Dehers v. Harriot, 1 Show. 165; Stephens’s N. P. 876. Under the influence of these authorities, I feel constrained to hold, that a bill payable, at sight, is entitled to days of grace ; consequently, a demand of payment made of the drawej^ upon the first presentation of the bill to him, is insufficient to charge the drawer, for the bill is not then due. As there was no evidence of any previous presentation of the bill for acceptance, nor notice given of non-acceptance, the demand of payment was prematurely made, and was therefore a nullity.

As the evidence fails to show a demand of payment on the day the bill was payable, the court correctly instructed the. jury, that the plaintiff could not recover.

Let the judgment be affirmed.