Page:Federal Reporter, 1st Series, Volume 5.djvu/254

242 FEDEBAIi BEFOBTëS. �the duty of the company is to be found in the rules of law governing a holder of commercial paper, and that by the very fact of taking a draft like this they assumed, in reference to this paper, ail the duties devolving on a holder of it taken for any other consideration, and were obliged to proceed with it as any holder would be under the commercial law. On the other hand, any neglect to proceed properly in the discharge of that duty would be excused under the same circumstances as sach neglect would" be excused with any other holder, and not otherwise. The condition in the policy was a security to the company, of which it can avail itself only by showing a strict compliance with that duty, or some lawful excuse for non-compliance. �This was, in legal form and effect, a contract with the plaintiffs — the poliey-holders, the children of Dr. Pendleton — lo take from them the draft of a third person, negotiable in form, in payment of $335 of the premium due, secured by a stipulation that the policy should cease if the draft sbould not be paid at maturity. Now, what was the duty of the company and its agent? Its iirst duty was to fix- the liability of the drawer by proper demand, protest, and notice, if it did not negotiate it by indorsement and impose that duty on some other holder. The parties from wiiom they took the draft, the plaintiffs herc, had a right to this, and it might have been very material to them to have it done. Next, the duty the company owed the drawer was to notify him promptly and legally of any failure of the drawees to accept or pay. This draft being payable three months after date, the company was under no obligation to present it for acceptance, but if it did undeftake to present for acceptance, it should have proceeded in ail respects as if the obligation existed. There is no doubt the draft was sent fotward for acceptance, presented, and acceptance refused. The proof will show you the date of the transaction. The plaintiffs say it was nOt till September 29, 1871. It was not protested for non-acceptance, the agents of the company having directed that no protest should be made, and no legal or proper notice of non-ac-eeptance was given to the Jrawor. This was a clear ����