§ 1178. The drawer of a bill of exchange is, for many purposes, regarded as the first indorser of the paper; and his contract is the same as that of an indorser, his liability being conditional on due presentment and demand of the drawee, and due notice in case of dishonor. In some cases, however, he cannot insist upon the performance of these conditions where a failure to perform them would be fatal as to a true indorser of the same bill. This exception occurs where the drawer has drawn his bill either without a reasonable ground to expect that it will be honored by the drawee;4 or where, after the drawing of the bill, but before presentment for payment, he has withdrawn his funds from the hands of the drawee, without an understanding that his paper will be honored;1 or where, without such an understanding, he has intercepted funds which he has on the way to the drawee.2 In either of these cases it is regarded as a fraud on the part of the drawer to draw the bill, and he will be held liable to the holder of the paper without demand and notice. It is not enough, however, to excuse these acts that the drawer had no funds in the hands of the drawee when he drew the bill; for it may be impossible sometimes (as where there are unsettled running accounts between the parties) for the drawer to know the fact; and he may have a reasonable belief that his paper will be honored. But in all these cases the indorsers must receive notice of dishonor.3
1 Barlow v. Bishop, 1 East, 433; Stevens v. Beals, 10 Cush. 291, denying Savage v. King, 17 Me. 301; Reakert v. Sanford, 5 W. & S. 164; Leeds v. Vail, 15 Penn. St. 185; Lindus v. Bradwell, 5 C. B. 583.
2 Stevens v. Beals, 10 Cush. 291; Hancock Bank v. Joy, 41 Me. 568.
3 State Bank v. Fearing, 16 Pick. 533.
4 Hopkirk v. Page, 2 Brock. 20; Cathell v. Goodwin, 1 Har. & G. 468; Orear v. McDonald, 9 Gill, 350; Valk v. Simmons, 4 Mason, 113; Red-field & Bigelow's L. C. 430-442.
§ 1179. Demand4 and notice are not, as has been intimated, necessary in every case to charge a drawer or indorser.5 If they are not possible by the exercise of reasonable diligence, they will be excused.6 Among the temporary excuses of presentment and notice are the following: Inevitable accident,7 the prevalence of war,8 the vis major,9 interdictions of commerce,10 and the like; indeed, any thing making demand or notice impracticable.11 In these cases the acts must be performed within a reasonable time after the removal of the obstacle.1 Among the absolute excuses of both demand and notice are express waiver by the drawer or indorser,2 and an absolute promise to pay the paper.8 But waiver of notice will not excuse demand,4 though waiver of demand necessarily excuses notice of dishonor. Want of demand or notice is not excusable on the ground that the drawer or indorser has suffered no injury thereby, or that he has actual knowledge of the fact, as the party is entitled to know whether he is looked to for payment.5 But it is held that if the party has received an assignment of all the effects of the maker or drawee, notice is not necessary.6
1 Valk v. Simmons, 4 Mason, 113; Rhett v. Poe, 2 How. 457; Orr v. Maginnis, 7 East, 359; Adams v. Darby, 28 Mo. 162; Spangler v. McDaniel, 3 Ind. 275.
2 Ibid. 3 See Redfield & Bigelow's L. C. 443.
4 The term "demand," when used alone, includes presentment also; and presentment thus used includes demand. In the case of paper payable at a place named, all that is necessary, as to presentment, is to ascertain if the maker or acceptor have provided funds there for payment.
5 The maker of a note, or acceptor of a bill, cannot insist upon presentment and demand, even though the paper be payable at a particular place named. Wallace v. McConnell, 13 Pet. 136; Redfield & Bigelow's L. C. 109.
6 Bank of Utica v. Bender, 21 Wend. 643; Lambert v. Ghiselin, 9 How. 552; Beale v. Parrish, 20 N. Y. 407; Walker p. Stetson, 14 Ohio St. 89.
7 Windham Bank v. Norton, 22 Conn. 213. 8 House v. Adams, 48 Penn. St. 261.
9 Story on Promissory Notes, §§ 257, 356. 10 Ibid. 11 Ibid.
§ 1180. Presentment and demand should be made on the last day of grace, and if made sooner or later the indorser will not be liable.7 And in Massachusetts it is held that in case of dishonor at any proper time of demand on the last day of grace, a right of action immediately accrues to the holder against the maker or acceptor, without waiting until the next day;8 and the same would doubtless be true of an indorser or a drawer notified on such day. But in New York it is held that an action before the next day would be premature.9 In Pennsylvania and in other States it is held that, before a right of action accrues against an indorser, the holder must wait until a sufficient time has elapsed for the notice of dishonor to reach the party; though it is not necessary that the notice should in fact be received.10
§ 1181. Presentment should be made at a reasonable time of the day; and whether the time be suitable or not will depend on the circumstances of the case. If the maker or acceptor be a banker, demand should be made during banking hours, unless a person be left at the bank to give answer after the close of the regular hours of business.1 In England it is held that if the maker or acceptor be a common trader or merchant, demand may be made at any time before the usual hour of retiring, though the shop be closed.2 In this country it is also said that the proper time for the presentment of paper not payable at a bank ranges through the day until bed-time.3
1 Story on Promissory Notes, § 259; House v. Adams, supra.
2 Sigerson v. Mathews, 20 How. 496.
3 Gove v. Vining. 7 Met. 212; Redfield & Bigelow's L. C. 473-476.
4 Berkshire Bank v. Jones, 6 Mass. 524.
5 Juniata Bank v. Hale, 16 S. & R. 157; Barton v. Baker, 1 S. & R. 334; Redfield & Bigelow's L. C. 461, note.