Jilson P. Harrison vs. Ransom D. Crowder.
By making a note payable at a particular bank, the parties are presumed to consent to be governed by such customs as may prevail in the bank with regard to making demands of payment.
A greater strictness must be observed in making demand of payment at a bank having banking hours, than is necessary in personal demands. ' A personal demand may be made at any time during the third day of grace, but a constructive demand at a bank with business hours, must be made at the close of the business hours ; for the maker has until that time to deposit the money for the payment of the note.
In an action against the indorser of a promissory note payable at a bank with banking hours, the notary testified that he had no recollection of the fact or time of presentment, except from his protest, from which he had no doubt that he did present the note; that when he protested the note sued on, his habit was to make demand of payment about the close of banking hours, believing that practice to conform to the law; when payment was refused, he took the note away with him ; he could not say whether the note sued ion had been presented an hour or a minute before the close of the bank, except from Iris habit of presentation, about that time. Held., that the testimony should have been left to the jury, for them to say whether the demand on the note had been made about the close of banking hours.
There is no rule of law which compels a holder of a note to deposit it in the bank at which it is made payable ; if it be presented there at the close of business hours, it must be sufficient.
The law does not prescribe impracticable rules ; it seems therefore that when a note is payable at a bank having business hours, it is not absolutely essential that the note shall be presented at the very moment of closing the doors of the bank; probably a few minutes would be regarded as of little consequence in the application of the rule.
Where, in an action against the indorser of a note, payable at a bank with business hours, the judge instructed the jury, that a demand of payment “ in some reasonable or convenient time before the doors were closed,” would be sufficient, it was held that the instruction was erroneous.
In error, from the Warren circuit court; Hon. George Coalter, judge.
*465- Ransoti D. Crowder sued William S. Bodley as the maker, and Jilson P. Harrison as the indorser of a promissory note, in these words, viz.:
“ Vicksburg, January 5, 1839.
“Twelve months after the 5th day of January, 1839, I promise to pay J. P. Harrison, or order, the sum of four thousand dollars without defalcation, for value received, negotiable and payable at the Commercial and Railroad Bank of Yicksburg.
“ William S. Bodley.”
(Indorsed, “ J. P. Harrison.”)
The defendants plead non assumpsit. On the trial, John F. Pierson testified that he was, on the 8th of January, 1840, a justice of the peace and notary public, residing in Yicksburg; that on that day the promissory note sued on was delivered to him by Robert S. Riddle, then cashier of the branch of the Planters Bank in Yicksburg, for the purpose of being presented at the Commercial and Railroad Bank of Yicksburg for collection ; that he accordingly went to the Commercial and Railroad Bank on that day with the note in his possession, and then and there, during the banking hours of the bank, presented the note to the teller of the bank for payment, and demanded payment of it, which was refused, whereupon he left the bank, and he presumes took the note away with him. He had no recollection of the fact of presentation or of the precise time of day when it was made; but from his protesgysefore him, stating those facts, he had no doubt of the dema^^Bd refusal on that day having occurred. That when he com^mced acting as notary public, he adopted the rule of presenting notes for payment during the last hour of bank hours on the last day of grace, and about the close of the bank hours or business hours of the bank, believing, from an examination he had made, that such a presentation was necessary in order to fix the liability of indorsers. He had, however, no recollection of the time when presentation was made in this case; that his practice was to take the note away with him when payment was refused; he did not recollect that he ever remained in bank, but on one occasion, until the banit closed its doors, and then he left through the back *466door. He did not recollect or believe that he pursued that course in the present case; he would not say that he presented the note sued on one hour, or one minute, or any specific time before the expiration of banking hours, except from his usual habit at that lime of making demand of payment about the time the bank closed and the last of the banking hours; he had no recollection on the subject. He delivered the notice of protest to the defendant Harrison at his residence in Vicksburg, on the morning after the note was presented for payment.
This being all the evidence on the part of the plaintiff, I. G. Bibby, on the part of the defendant, proved that he was the teller in the-Commercial and Railroad Bank at the maturity of the note, and previous; that the banking hours of the bank were from ten o’clock in the morning until two o’clock in the afternoon, at which last hour the bank closed for the day; that upon all paper payable at and held by the bank, the debtor had until the expiration of banking hours on the last day of grace to make payment; such was the settled usage of the bank at the time the note sued on was made, and at the time it was payable ; and by the same usage, no note or bill was regarded as dishonored if payment thereof were made on the last day of grace at any moment before the expiration of banking hours. There was no usage or custom in reference to paper payable at the bank, but not owned by it or held by it for collection.
This being all evidence, the defendant’s counsel asked the court to insti^^Bhe jury as follows: 1. That if the jury believe, from the ^roence, it was the usage and custom of the Commercial and Railroad Bank of Vicksburg to regard notes due to it and payable at it, as only due at the expiration of the business hours of the bank on the third day of grace, then all notes made payable at the bank are governed by this usage; and that the note sued on in this case was not, if such usage were proved, due until the expiration of the business hours of the bank on the 8th day of January, 1840; and a presentation and demand of payment before that time is insufficient to charge the indorser, Harrison. 2. That it is incumbent on the plaintiff to prove to the satisfaction of the jury, that the note *467was left in bank, and was in the hank for presentation when the bank closed its business hours on the 8th of January, 1840; if such proof be not made, they must find for Harrison. 3. That in order to charge the indorser, the testimony must not leave it doubtful whether the note was in bank at the time it closed its business hours on the 8th of January, 1840, but it must appear from the testimony, clearly and satisfactorily, that it was left there.
The court refused to give the instructions as prayed for; but gave them with this qualification: “ That if the jury believed from the evidence the note was in said bank at the close of its business hours on the 8th day of January, 1840; or if ihey believed it was presented and payment demanded at the close of its business hours by the notary; or demand made by him in some reasonable and convenient time before its doors were closed on that day, it will be sufficient to charge the indorser, and they must find for the plaintiff.
The jury found for the plaintiff; the defendant, Harrison, moved for a new trial; which being refused, he embodied the evidence in a bill of exceptions, and has brought the case to this court by writ of error.
J. O. Harrison, for plaintiff in error.
The rule which the witness says he adopted, of presenting notes for payment during the last hour of bank hours, was not the correct rule, because the note, in the language of the high court of errors, in the case of The Planters Bank v. Markham, 5 How. 397, cannot be considered as “ due until the expiration of the hour allowed for payment by the usage of the bank.”
It is necessary that there should be some well-established and fixed rule for presenting commercial paper for payment.- The law has established the rule, and hás fixed the time of presentation. The holder must wait until the maturity of the note; he cannot demand payment and protest for non-payment before the expiration of the last moment up to which the maker has by law the right to tender his money and demand the note.
If it be a sufficient demand to present the note for payment *468during the last banking hour, then it must be equally sufficient to demand payment immediately after the opening of bank in the morning, or at any other time during the business hours of the bank. But this court has, upon full argument, determined such demand to be insufficient. Nor, for the same reason, is it sufficient to demand payment about the close of .bank hours. Such testimony is entirely too vague and indefinite for any legal purpose. What precise time is meant by the expression, about the close of bank hours ? It cannot of course mean at the close. It must necessarily mean a point of time either before or after the bank closed.
The law requires that commercial paper shall be presented for payment on the third day of grace. Suppose the notary should testify that he did not recollect the precise day on which he made demand of payment, but that his practice was to make the demand about the last day of grace, and therefore he believes that he did in the present case present the note for payment somewhere about the last day of grace ; would the court, upon such a state of fact, decide that the law had been complied with? Surely not.
The rule, as settled by this court in the case of The Planters Bank v. Markham, subjects no one to inconvenience; because, if the notary does not'wish to remain in bank until it closes, he can deposit the note there, which of itself would be a sufficient demand of payment.
From this examination of the testimony I think it mánifest that there is, in fact, no difference between this and the case against Markham, and of course the law should be the same.
The court will perceive that the instructions asked for on the part of the defendant, Harrison, were based upon the decision of this court in the case against Markham, and were drawn almost verbatim from that decision. The court below, however, was of opinion that the rule, as there established, was much too rigid, and attempted to introduce a modification of it by instructing the jury “ that the demand was sufficient if made by the notary in some reasonable and convenient time before the bank closed its doors on that day.”
*469Now what is meant by reasonable and convenient time? Whose convenience is to be consulted ? That of the notary, or that of the bank ? Are parties to go back one, or two, or three, or even more years, for the purpose of ascertaining and proving the various circumstances under which the demand was made, in order to show that the demand was or was not made at a reasonable and convenient time? Will this court depart from a fixed and definite rule of law, and put this question upon the uncertain basis upon which the court below has attempted to. place it ? It is to be hoped not.
It will be seen that the proof as to the usage of the bank is the same in this case with that in the case of Markham. The only question is, whether this court will adhere to its own decision, pronounced as it was upon full argument, and which establishes a rule at once precise, intelligible, and definite, or adopt the modification of the court below, which leaves the time of the maturity of a note to be fixed, not by the rigid rules of law, and the contract of the parties, but by the convenience of the notary public who presents it for payment.
Mason and Burwell, for defendant in error.
The only question presented by the bill of exceptions for this court to decide, is whether the notary, who protested the note, made a proper and legal demand of payment at the Commercial and Railroad Bank, the place of payment mentioned in the note, and whether the instruction of the court below was correct on that subject. The bill of exceptions presents a case very different from that of The Planters Bank v. Markham, in 5 Howard’s Reports, and relied on by the counsel for the plaintiff in error. In that case the notary stated, “ that he did not recollect how long before the expiration of the business hours of the bank he left, and, as he believes, carried the note with him which was protested.” So that in the case of The Planters Bank v. Markham, it is found from the testimony of the notary that he demanded payment and left the bank, taking the note with him, before the termination of the business hours of the bank, which was considered by this court not to consti*470tute a good demand; but in this case no such facts occur. On the contrary, the notary stated that on the 8th day of January, 1840, with the said promissory note in his possession, he went to the said Commercial and Railroad Bank, and did, then and there, during the banking hours of said bank, present the said note to the teller of said bank for payment, and did then and there demand payment thereof, and that payment thereof was refused, whereupon he the said notary left the said bank, and, as he presumes, took the said note away with him.” It was proved by the cashier of the bank, that the Commercial and Railroad Bank had regular business hours, to wit, from ten' until two o’clock. So far, then, from presenting a state of facts similar to those of the case reported in 5 Howard, the testimony of the notary, so far, brings this case within the decision made by this court, in the case of Fleming et al. v. Fulton, 6 Howard. In that case the notary certified, that on the 16th March, 1839, he went to the Planters Bank at Natchez, and then and there presented the original note for payment, demanded payment, and was answered by the teller of said bank, that the note would not be paid. And the court charged the jury, that the presentment, demand and notice, as proved, as aforesaid, were sufficient to charge the indorsers. The Planters Bank, was also proved to have regular business hours. Judgment was rendered against them, which was affirmed by this court; and in its opinion, it says : “ The notary does not state the hour of the day, and it must be presumed, until the contrary appears, that the presentment was at the proper hour.” Fleming et al. v. Fulton, 6 How. 484.
In this case the contrary does not appear. Examine the testimony, and it goes, so far from weakening the presumption that the presentment was made at the proper hour, or (in the language of the court, in 6 Howard,) “in making the contrary appear,” expressly to state that he knew that the presentation and demand should be made at the last hour, and about the close of banking hours; and that his habit was to make demand of payment about the time the bank closed, and the last of the banking hours. Here, then, we have a case in the *471testimony of this notary, which strengthens “ the presumption that the presentment was at the proper time.” He does not, and cannot name the hour, except that it was during banking hours, and on the last day of grace; this would be enough, the court have said, “ as. it will be presumed that it was at the proper hour, until the contrary appears.” But he then states facts which make this presumption amount to conviction, that he did present the note at the proper hour, to wit, that he had examined the subject when he commenced acting' as notary public, and knew that the presentment should be made at the close of business hours of the bank, on the last day of grace, and,that his usual habit was, at that time, to make demand of payment about the time the bank closed, and the last of the banking hours.
The counsel for the plaintiff in error have not kept in view the fact that the notary, in the case of The Planters Bank v. Markham, expressly stated that he made the presentment and demand, and took the note away from the bank before the close of the banking hours; and that in this case the facts were wholly different. The instructions given by the court were, in accordance with the rule laid down by this court, in the case reported in 6 Howard, 484.
Mr. Chief Justice Sharkey
delivered the opinion of the court.-
This suit was brought against the maker and the indorser of a promissory note. To establish the liability of the indorser, the notary was called, who testified that he presented the note at the bank where it was made payable, on the last day of grace, during banking hours.- On being questioned as to the particular time of presentment, he stated that he had no recolÍction of the fact of presentment, or the precise time at which "ccurred, except by reference to his protest, then before him, but had no doubt that he did so present the note. He further stated, that when he commenced acting as notary, he adopted the rule of presenting notes on the last hour of banking hours, on the last day of grace, and about the close of the business hours, believing that practice to conform to the law. He had *472no recollection, however, of the time when presentation was made in this case. His practice was to take the note away with him when payment was refused. He did not recollect that he ever remained in bank until it closed, except on one occasion, and did not recollect or believe that he pursued that course with this note. He would not say that he presented this note one hour, or one minute, or any specific time before the close "of banking hours, except from his usual habit of making demand about the time the bank closed. Notice was delivered to the indorser at his residence. The teller in the bank stated that the bank had regular business hours, from ten o’clock, A. M. until two, P. M., and, by the custom of the bank, debtors had until the expiration of banking hours to pay, and that no note was considered dishonored, if payment was made at the last moment.
On this evidence the defendant’s counsel requested the court to charge the jury, that if they believed it was the usage and custom of the bank to regard notes payable there, as only due at the expiration of business hours on the third day of grace, then notes made payable at the bank are governed by this usage, and the note sued on was not due until the expiration of business hou^ on the third day of grace, and that a presentation and demand of payment before that time, is insufficient to charge the indorser.
That it is incumbent on the plaintiff to prove to the satisfaction of the jury, that the note was left in bank, and was there when the bank closed on the third day of grace; and if such proof is not made they must find for the defendant.
That in order to charge an indorser, the testimony must not leave it doubtful whether the note was in bank when it closed, but it must appear clearly and satisfactorily that it was there„
The court refused the instructions, except with this modified tion; that if the note was in bank at the close of business hours; or if it was presented by the notary, and payment demanded, at the close of business hours; or if a demand was made by him at some reasonable or convenient time before the doors were closed on the third day of grace, it will be sufficient, to charge the indorser.
*473The law undoubtedly is, that by making a note payable at a particular bank, the parties are presumed to consent to be governed by such customs as may prevail in the bank, with regard to making demand of payment. ,A greater strictness must be observed in making these constructive demands, than is necessary in personal demands. A personal demand may be made at any time during the third day of grace, but a constructive demand at bank, having regular business hours, must be made at the close of the business hours, for the maker has until that time to deposit the money for the payment of the note. This rule has in it more strictness than reason; but as it is so established, it is best not to depart from it.
It is very difficult to distinguish this case from that óf The Planters Bank v. Markham, 5 How. 397, and yet there is some difference. In both cases the notaries state that they do not recollect the precise time of presentment; but in this case the notary states that it was his usual habit to present notes for payment about the close of business hours, which rule he had adopted from a conviction that in that way only would an indorser be bound. Had this testimony been left to the jury without a charge, it is quite probable they would have found for the plaintiff. The quéstion was so nicely balanced as to make it proper that it should have been left to the jury to say whether the demand in this instance was made about the close of business hours. In the case of The Planters Bank v. Markham, it was said, “ that a note or other security thus payable at a bank, cannot be considered as due until the expiration of the hour allowed for payment by the invariable usage of the bank; and that it must be left at the bank until the completion of the allotted hour.” In the application of this rule to notes J^d by the bank, there can be no difficulty. But it may be ^acting too much to require a literal compliance when notes are held by individuals. There is no rule of law which compels a holder to deposit his note in the bank at which it was made payable. If it be presented there at the close of business hours, it must be sufficient; and this I apprehend was all that was meant in the decision of .The Planters Bank v. Markham. *474Here a difficulty again occurs; must the demand be made at the yery moment of closing the doors of the bank, that point of time being the termination of business hours 1 Or will some anterior time answer the purpose 1 The law does not prescribe impracticable rules. Its requirements are reasonable, and probably .a few minutes would be regarded as of little consequence in the application of the rule. But the court seems to have laid down the rule of law with greater latitude than is fairly warrantable, when it was said a demand made “ in some reasonable or convenient time before the doors were closed,” would be sufficient. We would avoid verbal criticisms as much ás possible, and yet it sometimes becomes necessary to weigh the signification of words. A reasonable time would present a question of law; but a “convenient time” before the closing the doors is too indefinite. It must mean the convenience of the notary; and it might best suit his convenience to make the demand in the morning when the doors were opened. The charge sustained, would establish a new rule, and lead to refinements of a perplexing character, which should be avoided. We therefore conclude there was error in the charge, for which the judgment should be reversed, and the cause remanded.