Central Bank v. Allen , 16 Me. 41 ( 1839 )

The case was continued for advisement, and the opinion of the Court was afterwards drawn up by

Weston C. J.

We do not think the presiding Judge was bound to reject the depositions, because taken at so late a day at Portland. No decision has gone that length. The defendant, in the present facilities for travelling, had ample lime, if he chose to be present at the caption, without violating the Sabbath, to go from that city to Augusta, before the sitting of the Court, lor which it was taken.

The note having been left at a bank for collection, the maker was entitled to grace, by the express provisions of the statute of 1824, c. 272. If the maker was entitled to grace, it results, that the indorser, who was collaterally liable, has the same privilege. Pickard v. Valentine & al. 13 Maine R. 412.

The maker had promised to pay it at a day and place certain. The place, the Branch Bank in Portland, was well known and understood at the date of the note. Before its maturity, that Bank ceased to have a place of business in that city. It has been held, that where a bill is drawn and accepted, payable at a particular house, going to that house with the bill on the day of payment, and finding it closed, is a sufficient presentment. Bailey, 200. And we are inclined to the opinion, that the Branch Bank having ceased to operate, if their banking house had not been occupied by a similar institution, presentment would have been excused. If this was the place of demand, and upon the facts we think it was, there is evidence of a sufficient presentment at that place. It must be taken to have been made in business hours, the Bank being open, the presentment having been made to the Cashier, and payment demanded of him. Berkshire Bank v. Jones, 13 Mass. R. 556; Nichols v. Goldsmith, 7 Wend. 160; Shaw v. Reed, 12 Pick. 132.

The answer of the Cashier of the Cumberland Bank, that the maker had provided no funds there, wherewith to pay the note, was properly a part of the res gesta, and as such admissible. But if it had not been, the holder is not bound to prove, that such funds had not been provided. If they had, it was matter of de-fence, to be proved by the indorser. Bank of U. States v. Carneal, 2 Peters, 543.

But if the discontinuance of the Branch Bank at Portland, has the same effect as if no place of payment had been appointed, we are of opinion, that such diligence was used by the messenger of the holder, as excused a personal demand upon the maker. He testifies, that he made diligent inquiry for his place of residence, which it appears had been at Portland, and was informed that he had gone into the western country, and particularly, that he had this information from the maker’s brother, who had been connected with him in business. The answers he obtained upon these inquiries, were very clearly admissible as a part of the res gesta. The holder was under no obligation to send into the western country to make demand, but the written demand of payment, left at Moorhead’s, his former residence in Portland, was sufficient. McGruder v. Bank of Washington, 9 Wheat. 598; Anderson v. Drake, 14 Johns. R. 114. In any point of view, in which thecase can be considered, there is no evidence of laches in the holder, but there is evidence of sufficient diligence on his part.

As to the proof of notice to the defendant, it was such as is uniformly received, without first giving notice to the party to produce it. Eagle Bank v. Chapin, 3 Pick. 180.

Exceptions overruled.