Page:Federal Reporter, 1st Series, Volume 7.djvu/186

 1T4 FSDBBiXi BfiPOBTEB. �made, is intolerable to my sense of justice, howerer it may appear to others, and the only doubt I have had about the correctnesB of the charge to the jury has been on the point whether the company was not bound to treat this draft at paid, 80 far as these plaintiffs were concemed, when they neglected to present it for payment on the day of its maturity. That they did not bo present the draft hardly admits of a doubt on the proof, and the probability is that it was not presented becanse the bank at New Orleans took the same view of the law that bas been iirged here, namely, that re- fusai of acceptance ezcused presentment of payment, over- looking the f arther reqairement of protest and notice to have this effect; induced thereto, no doubt, by the fact that they had been instructed not to protest, from which it might be reasonably inferred that there was no neoessity for prompt action in the premises. The burden of proving the present- ment was on the defendant, and that there was no such proof ac the law requires is plain. 1 Daniell, Neg. Inst. § 598. There is as little doubt that if the presentment for payment had been made the draft would have been paid. The draft for the cash portion, which, by calculation, appears to have been just enough to eover the interest and agent'B commis- sions, was paid, and, as precisely the same course had been pursued in reference to the first premium, it appears, by the aceount of G-reen^ood, that that draft was not presented promptly, nor for some days after it was due. This, taken with the proof here as to the mode of business adopted in reference to this draft, shows that the agents of the company were not so diligent or prompt in their dealings with this policy-holder as to justify them in requiring strict and prompt action on his part. Here was a man in the wilds of Arkansas, where communication was difficult at all times, some hun- dreds of miles away from this city, where the insurance agenoy was jlocated, and many hundreds more away from the city where he did all his financial business and got the money to pay all his debts. His insurance was solioited at his house by a traveling agent, who, recognizing from the nature ��� �