Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-11-28

Memphis Law Court.
FACTS. This action was brought by the Bank
on the following note:
$3.50 U9 MEMPHIS, Tenn, March 30, 1862.
Eight months afIer date I promise 10 pay q
the order OF W. +. AvanJ thirty eight huuoret
nd seventy U9-lDJ dollars, at the Branch of the
Union Bank Of Tennessee Al Memphis yalu'
received. ". A. BROWN,
By his Attorney, ". f. AvANT.
The note is endorsed -' W. F. Avant, oxford
Miss + NJ. ApperSOn & Co.." ana was dis
counted by the bank for Apperson, Marcn SJth
On May 18th, ISs2, Memphis being threatenet
with occupation by The United Stales forces
after some preliminary cOrres pOndenCe between
the bank officers and the commander OF ht
Confederate forces, the hank assets, Including
the note in contest, were fOrcibly removed
South, by order OF the Confederate military au'
thOrity. \ descriptive list OF the notes belong'
ing TO the bank was taken aud sept iu Mem
phis, but by oversight The descriptive. lust omit
ted 10 state the places sf payment Of the notes,
the United States forces, and held un'
Ill the close Of the civil war. The
oficers ahC directors Of the bank le
nained in Memphis all the while, In August
1852. the Office OF the bank was opened for the
purpose OF protecting The building, receiving
special deposits, and payments voluntarily
made, but did no regular banking busi 10 uts >,
until February 1854, when the mother bank al
Nashville furnished IL with additional assets
Apperson, the eudorser, remained In Memphi.
during the war. Al me close OF the war, aud a.
soon rs convenient, On the l7Jh uay OF July
1865, the bank assets were brought back V
Memphis, and on the same day the note IN con.
test was placed in the hands OF a notary, and
Immediately protested, and notice given. A
short time after the occupation OF Memphis by
the United states forces, ordinary business was
resumed and continued without danger OF
difficulty attending its transaction, by persons
residing within The military lines. No ettoTt
made by the bank 10 protest this nOts
led: Where the time aud place Of payment
are fixed In the face of a note. indie peudent M
he hnAier - Mt hl
during the zine specihed for the payment, and
no one calls 70 make payment me contract Is
forfeited and right OF action Immediately &C
z Where note is payable at a bank, It Is the
duty OF the payor TO be at the bank within the
usual hours OF business to pay the same: and 4
he Omits 50 to do, and demand is there made
by the holder within those hours, and payment
denied, the holder may maintain his action lol
such dishOnor.
g. When the bank is itself The holder of a notf
so payable, no formal demand OF payment Il
necessary 70 be made; and the failure OF the
payor 10 pay tine note within the usual bank
ing hours, Is itself equivalent TO y demand anC
refusal OF payment, Tor which protest may bS
made.
the usual banking hours 70 pay It, The nott
ought not 10 be handed out Tor protest unit
those hours are past.
5. II the bank has funds OF the payor in il
hands tAat might furnish ground OF defenss
70 suit brought for non- pay ment But this Ii
properly a matter Of defence to be shown bJ
not matter TO be disproyed Dy the bank by neg
8. The following are the general grounds OF
reasons which excuse demand OF payment ol
presentment and notice, viz: I. Inevitable ac
cident or overwhelming calamity. 2 tn,
prevalence OF a malignsnt disease which suS
pends the ordinary operations Of business. g
The presence OF political circumstance
amounting TO a virtual interru ptiOu and OBJ
struedOn OF the ordinary negotiations OF trade
called the tis major. 1 The breaking out o
war between the county OF the holder aut
that OF the maker OF endorser. .. The Occupa
tion Of the country wnere the parties live O
wnere the note is payable, by a public enemy
which suspends commercial intercourse 3
Pubic and po-iLive lnterdicJions and prOhibi
tons OF The state, which obstr1et or suspend
commerce and Intercourse, :. The utter i'm
practicability OF fiudipg the maker, or ascer
tanning his place OF residence.
]. The following are the special ground
lice, viz: /. The reception Of the note from thi
payee, or other antecedent marty, too late L
make due preseutment, ? The note being al
accommodation pQte OF the nlRKer for tn,
benefit Of a particular endorser. 3. Specia
agreements between the holder and al
antecednet endorser waving the pre-
by an endorser of security to indemnify himsei
against loss, or to enable him to take up The
note at maturity, S. The receiving OF the not
by the holder rom an endoTseE as collateral Sc
curity for another debt Q A promise BY az
endorser 10 pay the note, after full knowiedgl
that A. has not been duiy presented for pay
s. Where distractions existed which pra
vented presentment at maturity as aboV
stated. presentmen with notice regularly mad
within a reasonable time after the removal q
suoh causes, would be legal and operative &
charge the endorser.
9. 1ne law does not require impossibiIitles o
the holder Of commercial paper, built IL doe
impose upon him tha exercise Of REASONABLE,
diligence not only IN making demand Of paw
meIit but aftef such demand ana refusal II
| Riyiug notice Of It's dishonor.
10 The loss, naislaying, destruction OF theapa
per at the time OF It's maturity is no excuse 60
the non -preSentment, though it might he 70
not copying the note in the Prptesti for tn
maker might still be wiling a pay upon IN
dempity offered and giVen, or without indem
nity, when he had strong personal oOniidene
| in the integrity and solvency ofthe holuer.
IL. Where the original note cannot be had, 1
I Is the duty OF the holder 70 make prescntmen
1 and give notice upon a substitute copy, VIII lcl
/ rnust always be as nearly in conformity to tn
/ original as Is practicable
~ To excuse presentment on the Eround O
| political disturbances. the effect Of the sam
! existing at the time Of maturity must be sucl
| as TO render Il i'm rossihle, or iInminently dan
gerous TO make presentmeut.
13. Prevalence Of civil war, as well as foreigI
/ war, viii excuse, provided the IaaEer or O,he
/ party liable on the paper is separated from ia
/ holder by the military lines u the oppOsin
/ parties.
1 The bank not bringing itself within any on
/ of these grounds of excuse, has no right OF dis
| covery against the endorser, ApDerson. fo
| want OF due preaentment,