Page images


Where demand was not made until the fourth day after maturity of Sec. 45. the bill ;-Held, that the drawers were discharged : Orear v. McDonald, 9 Gill (Md.) 350.

When the maker of a note lived 200 miles from the holder, a demand made within six days of the maturity of the note, was held to be sufficient: Freeman v. Boynton, 7 Mass. 483.

A note dated 25th February (leap year) payable ninety days after date, does not fall due until 29th May, and a protest and notice before that date was held to be premature : Craft v. State Bank, 7 Ind. 219, See also Kobler v. Montgomery, 17 Ind. 220.

A bill drawn in Toronto, on the 6th August, upon a party living in New York, payable at sight, in favour of a party living in Illinois, was presented in New York on the 10th November following ;-Held, that the delay could not, under the circumstances, be held to be laches on the part of the holder: Boyes v. Joseph, 7 U. C. Q. B. 505.

Before the statute it was held in Quebec, that if the holder of a bill of exchange locks it up for two years, he makes it his own, and cannot have recourse to the person from whom he received it : Rouleau v. Tourangeau, (1820), 2 Rev. Leg. 30; s. p. Bridgford v. Simonds, 17 La. An. 121.

* This provision applies to cheques, as well as to bills or notes payable on demand. It is always to be considered whether under the circumstances of the case, the cheque has been presented with reasonable diligence. This is what the law-merchant requires. Bankers would be kept in a continual fever if they were obliged to send out a cheque the moment it was paid in. It was a question at the time of the older cases, whether what was a reasonable time was not for the jury, but in the case of Rickford v. Ridge, 2 Camp. 537, it was settled to be for the Judge. The provisions of the Act now make it a mixed question of law and fact. Section 10 defines what is a bill payable on demand ; s. 36, sub.s. 3, prescribes the rule for determining when such a demand bill is to be considered as overdue. See also s. 40, as to the presentment for acceptance or negotiation of a bill payable after sight; and also the cases as to reasonable time referred to in the notes to these sections.


[ocr errors]

ILLUSTRATIONS. A demand made within seven days on the maker of a note payable on demand, is reasonable : Seaver v. Lincoln, 21 Pick. (Mass.) 267.

A delay of two weeks in presenting a demand note for payment, after it comes into the hands of a holder, is prima facie unreasonable : Keyes v. Fenstermaker, 24 Cal. 329.

A delay of five months and a half to give notice of a demand and nonpayment, unexplained, was held to amount to gross negligence : Ellis v. Dunham, 14 Ark. 127.

So a delay of eight months : Field v. Nickerson, 12 Mass. 131. See also Thayer v. Brackett, Ibid. 350 ; Jerome v. Stebbins, 14 Jal. 457. Sed contra : Vreeland v. Hyde, 2 Hall. (N. Y.) 429.

A note or cheque received about noon on one day, it is a reasonable time to go for the money the next morning ; but if the party receiving it keep it for several days without demanding payment, and the payee become insolvent, he must bear the loss : Ward v. Evans, 2 Ld. Raym. 928.

Sec. 45.

[ocr errors]

4 The bill must be presented by the holder or his agent, who must exhibit the bill to the person from whom he demands payment and be ready to give it up on receiving payment, (s. 52, sub-s. 4). Presentment for payment must be such a presentment as would be sufficient to charge the indorsers, or other persons collaterally liable on the bill : Griffin v. Weatherby, L. R. 3. Q. B. 767. Formerly a demand of payment of a foreign bill by a banker's clerk was not sufficient. “ The demand of a foreign bill must be made by a notary public, to whom credit is given, because he is a public officer :Per Buller, J., in Leftley v. Mills, 4 T. R. 175.

ILLUSTRATIONS. The holder of a bill accepted payable at a bankers, impliedly agrees to present it for payment within the usual banking hours : Parker v. Gore don, 7 East 385.

But presentment of a bill after the usual hours is sufficient, provided there is sombody at the place, who sees the bill or gives an answer; otherwise it will not be sufficient : Henry v. Lee, 2 Chit. 124.

A presentment at a banking house after hours when the house is shut, is not sufficient to charge the drawer; and no inference is to be drawn from the circumstance of the bill being presented by a notary, that it had been before presented within banking hours : Elford v. Teed, 1 M. & S. 28.

The acceptor of a bill paid the amount to his bankers, (part of which he had borrowed from the holder of the bill) the day before the bill fell due. On the morning of the day it was due, the acceptor died, and the bankers refused payment. The holder then sued the bankers, but it was held that there was no privity between them, and the action was dismissed : Hill v. Royds, L. R. 8 Eq. 290.


• Formerly it was held that an acceptance of a bill payable at a particular place was a qualified acceptance, and that presentment at such place was absolutely necessary. But later legislation (7 Wm. IV. c. 5; C. S. U. C. c. 42 ; R, S. C. c. 123), provided that an acceptance payable at a particular place should be held to be a general acceptance, unless the acceptor or maker stated on the bill or note that it was to be payable there only and not otherwise or elsewhere. This provision, requiring the words “only and not otherwise or elsewhere,” to be stated in the bill or note, has not been re-enacted in s. 19, although such a provision is contained in the similar clause in the English Act. The result of this change in the law is to import a noticeable peculiarity and difference respecting the effect of designating on a bill of exchange, or a promissory note, the place of payment. In the case of a bill, an acceptance to pay at a particular specified place is defined, by s. 19, to be neither conditional nor qualified, and therefore a general acceptance; which, under the former law, authorized the holder, at his option, to present the bill, either at the particular specified place, or to the acceptor personally. But there is nothing in this Act as to whether this option is continued or not. The proceedings in this section regulate the mode and procedure of present

ment for payment. In the case of a note, the promise to pay at a parti- Sec 45.
cular specified place is made part of the contract, and there is no statu-
tory provision (as there was in the case of a bill), altering the effect of
that condition, or giving the holder any option as to the place of present-
ment for payment. The effect is the same as if the note were made payable
at the designated place, “only and not otherwise or elsewhere.” There is
an agreement in the law as to what presentment will make the primary
debtor in each case liable. A bill need not be presented on the day it
matures in order to render the acceptor liable, unless there is an express
stipulation on the bill to the contrary (s. 52). Similarly, if a note is not
presented on the day it matures, the omission does not discharge the maker,
(s. 86). See note 2 to s. 18, p. 75, and note 4 to s. 40, p. 148, and notes
to s. 89.

Where a bill is made payable at a particular place, presentment there
for payment on the day it falls due, is sufficient to charge the drawer:
Richardson v. Daniels, 5 U. C. 0. S. 671.

Where A. had guaranteed certain advances of goods and money, to be made to B. by the plaintiff, and the plaintiff took B.'s note, payable at a particular place, for the amount ;--Held, that he could maintain no action against A. without proving presentment there, and notice of nonpaynient to A. : Driggs v. Waite,

6 U. C. 0. S. 310. Held, that a note made payable at the residence of the maker, at Strathroy, “only and not otherwise or elsewhere,” did not require any special form of presentment, it having been on the day it matured, at that place with the maker : Harris v. Perry, 8 U. C. C. P. 407.

A memorandum at the foot, or in the margin, of a note indicating a particular place of payment, form's no part of the contract, though shewn to be contemporaneous with the note itself : Williams v. Waring, 10 B. & C. 2. See now s. 86, sub-s. 3.

A drawer's acceptance of a bill payable at his bankers is tantamount to an order to the banker to pay the bill to any person who according to the law-merchant can give a valid discharge for it: Robarts v. Tucker, 16 Q. B. 560. The bankers cannot charge their customers with any other payments than those made in pursuance of that authority : Per Parke, B., Ibid.

Where a note was presented for payment on the day it fell due at the place where the maker had previously carried on business, and a person was there whom the jury found was an agent of the maker ;-Held, a sufficient presentment: Fitch v. Kelly, 44 U. C. Q. B. 578.

4 ILLUSTRATIONS. It is not necessary that payment be demanded by a notary; any agent of the holder may make such demand: Taylor v. Davidson, 2 Cranch Č.C. 434.

A demand of payment made on the assignee of an insolvent firm is not a sufficient demand to hold the indorser : Armstrong v. Thurston, 11 Md. 148.

A presentment of a bill by a notary to the acceptor on the street is not a sufficient presentment: King v. Holmes, 11 Pa. St. 456.

Where a note is drawn payable at the house of Y., and the notary does not present it to the maker A. there, nor inquire whether he had left


Sec. 45. funds to pay it, but presents it to Y., and demands payment of him ;

Held, not sufficient to hold the indorsers : Mechanics Bank v. Lynn, 2
Cranch C. C. 217.

An averment in pleading that the bill, when due, was presented for payment, is supported by proof that the holder went to the place named to present it, but found the house shut up, and no one there: Hine v. Allely, 4 B. &. Ad. 624.

If the makers of a note who had become insolvent, have shut up and abandoned their shop, this is evidence of a declaration to all the world of their refusal to pay their note there : Howe v. Bowes, 16 East 112.

A note was made by one A., payable at no particular place, was left at the bank in C., where A. then resided, for collection; and the clerk who was to present it, stated that on its becoming due he went to the house in which A. had resided, but could get no information respecting him. He enquired of more than one person who had known A. well, but their answers as to where he had gone were conflicting. It was proved for the defence that the maker made no secret of his intended departure ; that his furniture was advertised ; and that persons could at any tiine have given correct information as to his place of residence ;—Held, that at least application should have been made at the places to which A. was said to have gone ; that due diligence had not been used to discover his residence. And semble, that the question of diligence is not wholly a question for the jury : Browne v. Boulton, 9 U. C. Q. B. 64 ; £.p., 10 U. C. Q. B. 129.

6 There may be a difficulty in practically working out this clause where, after the making of the joint note, some one or more of the joint makers remove to distant localities, so that presentment to each on the day the bill matures, is impossible. In such a case s. 46 may be invoked to excuse the non-presentment.

ILLUSTRATIONS. A joint and several note made payable at their separate dwelling houses, was presented to both makers in the yard of one of them, and no objection was made by either as to the place of demand of payment;-Held, sufficient: Baldwin v. Farnsworth, 10 Me. (Fair.) 414.

Presentment to one only of the makers of a joint note is not sufficient to charge an indorser : Arnold v. Dresser, 8 All. (Mass.) 435; s. p. Taylor v. Davidson, 2 Cranch C. C. 434 ; Sed contra, Shed v. Brett, 1 Pick. (Mass.) 401 ; Harris v. Clark, 10 Ohio 5.

Where a note is signed by several joint makers, who are chargeable on the same contract, and in the same capacity, the holder must prove a case against all of them : Sifton v. McCabe, 6 U. C. Q. B. 394.

Formerly it was allowable, where a bill was accepted, payable at a particular place, and the acceptor had died before it became due, to prove presentment at the specified place; and it was not necessary to show presentment at the house of the deceased's representatives : Philpott v. Bryant, 4 Bing. 717. But where a bill was presented at the house of the acceptor, and the drawer, to whom it was shown, said that the acceptor was dead, and that he was his executor, and asked that it might stand over for a few days, such presentment was held sufficient: Caunt v. Thompson, 7 C. B. 400.



? It cannot be said that a general usage of presentment through the Sec. 45. post office had been adopted in Canada prior to this enactment, except in places where there had been no banking facilities. But in England such a mode of presentment is a recognized practice; and the custom of bankers there is, when a foreign cheque is deposited with a banker by a customer, to forward it by post direct to the drawees: Heywood v. Pickering, L. R. 9 Q. B. 432. A presentment through the post office is a reasonable mode of presentment: Prideaux v. Criddle, L. R. 4 Q. B. 461. The rule which convenience requires should be adopted : Rickford v. Ridge, 2 Camp. 539.

8 ILLUSTRATIONS. An acceptance of a bill drawn and payable to the drawer's order in London is a general acceptance, and a special presentment is not necessary : Fayle v. Bird, 6 B. & C. 531.

Proof of presentment of a bill so drawn payable in London, or excuse for non-presentment is not necessary : Selby v. Eden, 3 Bing. 611.

9 This clause is new, and there is no corresponding clause in the English Act. The prior clause authorizes the presentation of a bill for payment through the post office, i. e., sending it by post to the acceptor for payment. This clause provides for presentment for payment being made at the post office. It may be said to have been the more general practice of bankers and notaries, in the cases mentioned in the clause, to present the bill at a bank, the most appropriate place for an acceptor to place the money so as to have it ready on the appointed day to meet the bill. It is no part of the duty of a postmaster to act as banker, or bailee, for the acceptors of bills or makers of notes, and he may reasonably refuse such a responsibility. “ The postmaster receives no hire, and enters into no contract with individuals, and carries on no commerce or merchandise; the post office is a branch of the revenue, and a branch of the police :" Per Lord Mansfield, C. J,, in Whitfield v. Lord Despencer, 2 Cowp. 754. Besides he is not allowed any fee, nor required to give any security, for holding money for the convenience of such parties. Any other public officer in the city town or village, such as the mayor, clerk, or treasurer, or police magistrate or clerk, or the customs, or revenue officer would be equally appropriate. As every city and town, as well as every village of any importance, has a bank in it; the presentation of a bill or note at the post office instead of that most appropriate place, a bank, is somewhat anomalous.

46. Delay in making presentment for payment is ex- When delay cused when the delay is caused by circumstances beyond ment for the control of the holder, and not imputable to his default, excused. misconduct or negligence: when the cause of ay ceases

Imp. Act,8.46

Iod.Act,8.70 to operate, presentment must be made with reasonable diligence : 1

« PreviousContinue »