Page:Federal Reporter, 1st Series, Volume 7.djvu/183

PENDLETON V. KNICKBKBOOKER LIFE INB. CO. 171 �fused, it is said that, "on principle as well as authbrity, this refusai rendered a demand for payment on' the day of ma- turity unnecessary;" for which Plato y. Reynolds, 27 N. Y. 58(5, is cited. �This statement of the law ignores entirely an essential factor in the rule invoked, and that is due notice of non-ac- eeptance, which was given in the case cited, and must be always, to excuse non-presentation for payment, as the jury were told in this case. 1 Daniell, Neg. Inst. (2d Ed.) §§ 449, 598. But the notice not baving been given in this case, the jury were properly told that a failure to give it rendered presentation for payment as necessary on the day when the draft fell due as if no presentation for acceptance had been made. Id. §§ 449, 454. Indeed, it is possible, although the holders of this draft, payable as it was three months after date, on a day certain, were not bound to present it for ac- ceptance, that, having undertaken to do so, the failure to protest for non-acceptance itself discharged the drawer, and operated to make the payment of the premium complete by making the paper their own absolutely. Id. § 452; Gracie V. Sanford, 9 Ark. 233. There was searcely any proof before the jury to JQstify them in saying that the relations between the drawer and the drawee were such as to make the draw- ing of this bill a fraud that would excuse the laches, which seems, under modern decisions, to be the only excuse. 1 Daniell, Neg. Inst. (2d Ed.) § 450; 2 Daniell, Neg. Inst. (2d Ed.) §§ 1075, 1076, 1077, 1078, 1079. But the charge was very favorable on this question to the defendant company, and it cannot complain that the rules of the commercial law were held too rigidly against them. �It was repeatedly said in the argument, as it is said in this brief, that no injury could resuit to the plaintiffs by a want of presensation and notice. I do not ilnderstand, from the foregoing authorities, that this is now the test by which we determine whether the failure to present and give notice has been excused; but, if it be so, this case manifestly falls within the cases of injury as pointed out by the adjudi- ��� �