contract, and therefore it was not decided that such a promise constituted acceptance.1

'Townley v. Sumrall, 2 Pet., 170. Story, J., said: "This is not a case falling within the object or mischiefs of the statute of frauds. If A. says to B., pay so much money to C., and I will repay it to you, it is an original, independent promise; and if the money is paid on the faith of it, it has been always deemed an obligatory contract, even though it be by parol, because there is an original consideration moving between the immediate parties to the contract. Damage to the promisee constitutes as good a consideration as a benefit to the promisor. In cases not absolutely closed by authority, this court has already expressed a strong inclination not to extend the operation of the statute of frauds so as to embrace original and distinct promises made by different persons at the same time upon the same general consideration. D'Wolf v. Rabaud, 1 Pet., 476. The question whether a parol promise to accept a non-existing bill amounts to an acceptance of the bill when drawn, is quite a different question, and does not arise in this case. If the promise to accept were binding, the plaintiff would be entitled to recover, although it should not be deemed a virtual acceptance; and the point, whether it was an acceptance or not, does not appear to have been made in the court below."

CHAPTER XX.

PRESENTMENT FOR PAYMENT.

$ 571. The engagement entered into by the acceptor of a bill and the maker of a note is, that it shall be paid at its maturity—that is, on the day that it falls due, and at the place specified for payment, if any place be designatedupon its presentment. This engagement is absolute, but that of the drawer of a bill and the indorser or a bill or note

a is conditional, and contingent upon the true presentment at maturity, and notice in case it is not paid. The maker and acceptor are bound, although the bill or note be not presented on the day it falls due; but the drawer and indorsers are discharged if such presentment be not made, unless some sufficient cause excuses the holder for failure to perform that duty. It is important, therefore, to ascertain how the presentment should be provided for by the holder of the bill or note, lest by failure to observe the necessary precautions, the drawer and indorsers may be discharged, and the solvency of his debt destroyed or impaired. We shall consider, therefore, in order :

(1). The person by whom the bill or note should be presented.

(2). The person to whom the bill or note should be presented.

(3). The time of presentment. (4). Days of

grace, and computation of time. (5). The place of presentment. (6). The mode of presentment. *Chitty on Bills (13 Am. ed.) (*353), 395; Story on Notes, § 201 ; Bayley on Bills, ch. 7, § 1; Magruder v. Bank of Washington, 3 Pet., 92 ; Cox v. National Bank, 100 U. S. (10 Otto), 712.

SECTION I.

BY WHOM PRESENTMENT FOR PAYMENT MUST BE MADE.

$ 572. Any bona fide holder of a negotiable instrument, or any one lawfully in possession of it for the purpose of receiving payment, may present it for payment at maturity. A notary public, or any agent duly authorized, may make presentment of the instrument for payment; and it is well settled that his authority need not be in writing.*

$ 573. When possession of bill or note evidences holder's right to present it for payment.—The mere possession of a negotiable instrument which is payable to the order of the payee, and is indorsed by him in blank, or of a negotiable instrument payable to bearer, is in itself sufficient evidence of his right to present it, and to demand payment thereof. And payment to such person will always be valid, unless he is known to the payor to have acquired possession wrongfully. And if the party holding possession of a negotiable instrument which is not indorsed by the payee, or has been indorsed by him specially to another, and has not been indorsed over by such indorsee, but has been placed in the holder's hands as agent, for the purpose of receiving payment, such agent may present it for payment, and payment to him will be valid ; even, as it has been held, although made in a manner different from that provided for in the instructions to the agent. The fact that the instrument is not indorsed by the owner is, as has been held, under such circumstances, of no importance. Such indorse

"Lefty v. Mills, 4 T. R., 170; Bachellor v. Priest, 12 Pick., 399; Sussex Bank v. Baldwin, 2 Harrison, 487.

2 Seaver v. Lincoln, 21 Pick., 267, in which case presentment was made by a sheriff; Shed v. Brett, i Pick., 40; Hartford Bank v. Barry, 17 Mass., 94; Freeman v. Boynton, 7 Mass., 483 ; Sussex Bank v. Baldwin, 2 Harrison, 487 ; Hartford Bank v. Stedman, 3 Conn., 489; Bank of Utica v. Smith, 18 Johns, 230; Williams v. Matthews, 18 Cow., 252.

• Bachellor v. Priest, 12 Pick., 399; Cone v. Brown, 15 Rich. (S. C.) 262 (1868); Jackson v. Love, 82 N. C., 405. See post, $g 812, 1191, 1230.

ment would be necessary to the negotiation of the instrument, but it would not be necessary to the validity of the payment.

$ 574. Possession of bill or note unindorsed by payee no evidence of right to present it.—When, however, a bill or note unindorsed by the payee, or indorsed by the payee specially, and unindorsed by his indorsee, is in the possession of another person, the question whether or not its bare possession is evidence of his right to demand payment, is of a different character. Without the indorsement of the payee or special indorsee, such possession would clearly not entitle the holder to the privileges of a bona fide holder for value, as at best he would only hold the equitable title to the instrument, and could not sue at law upon it as a ground of action. But it might be contended (and we were at one time of the opinion) that such possession should be regarded as evidence of the holder's right to demand payment as the agent of the payee or special indorsee; and that a payment to him would be valid, although he was in fact not authorized to receive it. But this we are now satisfied was a misconception of the law. Certainly if he were in fact the owner's agent, a payment to him would be valid, although he had produced no other evidence of the fact than the unindorsed instrument at the time when he received it. But the payment without other evidence of ownership or agency would be at the payor's risk. Possession without the indorsement might have been acquired by fraud or theft, and alone could not constitute sufficient

See Doubleday v. Kress, 60 Barb., 196 (1871), and $ 575. * See chapter XXII, on Transfer by Assignment, $ 741 ; also chapter XXIV, sec, vi.

• Hull v. Conover, 35 Ind., 372 (1871); Porter v. Cushman, 19 Ill., 572. • See Southern Law Review for April, 1873, p. 273.

* See ante, $ 573 ; post, § 1230; Story on Agency, $ 98 ; Doubleday v. Kress, 50 N. Y., 413 (overruling same case in 60 Barb., 181), Peckham, J., saying : “Mere possession of the note by the assumed agent, Murray, unindorsed, without any other sustaining facts, is not sufficient to authorize payment to him." Hannon v. Sullivan, 3 Mo. Ap., 583.

evidence of any right to the instrument whatever, being without transfer of title, or any collateral circumstance of a transfer in trust. Had the owner authorized the holder to act as his agent, an indorsement “ for collection” in terms, an indorsement in blank, or a written authority to collect it, would be the natural and proper mode of communicating the fact.

$ 575. Mr. Chitty says that any person who happens, whether by accident or otherwise (as by the failure of an agent), to be the holder at the time the bill or note becomes due, and although he has no right to require payment for his own benefit, may and ought to demand payment, and give notice of non-payment so as to prevent loss.

Doubtless the act of such unauthorized person would be sufficient to prevent loss, as the owner's ratification of it would be presumed; but it is not probable that the learned author intended to intimate the opinion that a payment to him would be valid unless ratified, or that his mere possession of the instrument, unless it was payable to bearer or indorsed in blank, was in itself evidence of a right to act as or for the owner. The doctrine of the text is sustained by nigh authority ;' and since the foregoing was written has been judicially established in New York, and found favor in Ohio. But in North Carolina the contrary view has been recently taken. If the holder have and exhibit extraneous evidence of his ownership of the instrument, such, for instance, as an assignment and mortgage duly executed, this will suffice without indorsement, and the party to whom it is presented would then have no right to

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Chitty on Bills (13 Am. ed.) (*365), 410; see also [*394), 445. In a very early case it is said: If a wrong person do show the bill, hy the custom of mer. chants this is a good payment. Anonymous, Styles, 366 (1652) ; Edwards on Bills, 494. ? Thomson on Bills, 245; Pothier, 168.

Wardrop v. Dunlop, 1 Hun (8 N. Y. S. C. R.), 325 (1874); Doubleday v. Kress, 50 N. Y., 410 (1872); Hannon v. Sullivan, 3 Mo. Ap., 583 (accord).

3 • Dodge v. National Exchange Bank, 30 Ohio St., I. • Jackson v. Love, 82 N. C., 405.

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