§ 59.

The following cases further illustrate the various rules above laid down:

13. Payments made by one of two joint and several makers will not take the case out of the statute, as against the other, unless made expressly as his agent and by his authority: Creighton v. Allen, 26 U. C. Q. B. 627 (1867).

13. A writing sufficient to take a note out of the statute enures to the benefit of a subsequent holder: Marshall v. Smith, 20 U. C. C. P. 356 (1870).

15. For conflicting decisions in Upper Canada as to prescription claimed under the Lower Canada Statute, see Hervey v. Pridham, 11 U. C. C. P. 329 (1861); King v. Glassford, ibid. 490 (1861); Shiriff v. Holcomb, 2 E. & A. (U. C.) 516 (1864); Hervey v. Jacques, 20 U. C. Q. B. 366 (1861); Darling v. Hitchcock, 28 U. C. Q. B. 439 (1869).

16. The statute begins to run the day after the last day of grace Edgar v. Magee, 1 O. R. 287 (1882); Ste. Marie v. Stone, 2 Dorion, 369; 5 L. N. 322 (1882).

17. The old rule in Lower Canada was, that a note payable on demand was due from the day of its date, and prescription ran from that time: Larocque v. Audres, 2 L. C. R. 335 (1851).

18. The absence of the defendant from the country does not interrupt prescription: Darah v. Church, 14 L. C. R. 295 (1861).

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19. A note made before a notary en brevet was held not to be a promissory note within the meaning of 12 V. c. 22, and C. S. L. C. c. 64, and not subject to the 5 years' prescription: Gravelle v. Beaudoin, 7 L. C. J. 289 (1863); Lacoste v. Chauvin, ibid. 339 (1863); Seguin v. Bergevin, 16 L. C. R. 415 (1865); Pigeon v. Dagenais, 17 L. C. J. 21 (1872). Crevier v. Sawriole, 6 L. C. J. 257 (1862), overruled.

20. The lex fori governs as to prescription: Hillsburgh v. Mayer, 18 L. C. J. 69 (1873); Cross v. Snow, 9 L. N. 196 (1886); Lafaille v. Lafaille, 14 R. L. 466 (1886); but held in a case governed by the law before the code, that where defendant made a note in the United States which was payable there, and before its maturity he absconded and came to Lower Canada, and the

holder did not learn his whereabout until more than five years § 59. had passed, the five years' prescription did not apply under the rule, contra non valentem agere non currit prescriptio: Wilson v. Demers, 14 L. C. J. 317 (1870).

21. Where the defendant had frequently written during the 5 years, asking for delay, prescription was held to have been interrupted: Walker v. Sweet, 21 L. C. J. 29 (1876).

-22. A verbal promise to pay a note under $50 during the 5 years will interrupt prescription: Fuchs v. Legare, 8 Q. L. R. 11 (1876); but such a promise after the 5 years have expired will not revive a note: Fiset v. Fouriner, 1 L. N. 589 (1878).

23. Where a bill is not accepted in payment of a debt, the prescription of the note does not prevent a recovery on the origi nal debt if it is not prescribed: Robitaille v. Denechaud, 5 Q. L. R. 238 (1879); Mitchell v. Holland, 16 S. C. Can. 687 (1889).

24. Payments on account by one partner take a note out of the statute as against his co-partner also: Sands v. Keator, 5 N. B. (3 Kerr) 329 (1847); Vanwart v. Roberts, ibid. 572 (1847).

25. The action accrued to the plaintiff, an indorser, when the note was transferred to him, and this being more than 6 years after it was due, his absence beyond the seas was immaterial: Bradbury v. Baillie, 6 N. B. (1 Allen) 690 (1850).

26. Where a note is payable by instalments, each instalment is subject to a separate plea of prescription: Montgomery v. McNair, 7 N. B. (2 Allen) 31 (1850).

27. A bill is payable three months after date or sight. Time runs in favor of the acceptor from the day the bill is payable, not from the day the acceptance is given: Holmes v. Kerrison, 2 Taunt. 323 (1810).

28. A note payable on demand, dated Jan. 1, is not issued until July 1. Time runs in favor of the maker from July 1: Savage v. Aldren, 2 Stark. 232 (1817).

29. A note is payable three months after demand. Time runs in favor of the maker from the day it is payable: Thorpe v. Coombe, 8 D. & R. 347 (1826).

$ 59.

30. The consignee of goods authorizes the consignor to draw on him against them. The bill is dishonored and the drawer compelled to pay. Time runs against him on the implied contract of indemnity from the date of payment only: Huntley v. Sanderson, 1 Cr. & M. 467 (1883).

31. A bill is accepted to accommodate the drawer. It is dishonored and two years afterwards the acceptor has to pay it. Time runs in favor of the drawer only from the time the acceptor was compelled to pay and not from maturity: Reynolds v. Doyle, 1 M. & Gr. 753 (1840); in cases of contribution, see Davies v. Humphreys, 6 M. & W. 153 (1840).

32. A bill payable 90 days after sight is dishonored by nonacceptance. As regards the drawer, time runs against the holder from the dishonor and notice thereof. If the bill is presented for payment and again dishonored, no fresh cause of action arises: Whitehead v. Walker, 9 M. & W. 506 (1842).

33. A note is payable on demand, with no mention of interest. Proof that interest has been paid on it takes it out of the statute: Bamfield v. Tupper, 7 Ex. 27 (1851).

34. In 1840 a blank acceptance is given to a person who in 1850 fills it up as a bill payable 3 months after date and negotiates it to a bona fide holder. Time runs in favor of the acceptor only from the day the bill was payable: Montague v. Perkins, 22 L. J. C. P. 187 (1853).

35. Defendant asked plaintiff for a loan, no time for re-payment being fixed. The latter gave him a cheque, which was not cashed at once. In an action to recover the sum lent, time runs from the day the cheque was cashed, and not from its date: Garden v. Bruce, L. R. 3 C. P. 300 (1868).

36. The maker of a note, 20 years after it was due, signed his name and the date on the back of the note. Held, a sufficient acknowledgment to take it out of the statute: Bourdin v. Greenwood, L. R. 13 Eq. 281 (1871).

37. To take a case out of the statute there must be an acknowledgement of the debt from which a promise to pay is

implied; or an unconditional promise to pay; or a conditional § 59. promise, and proof of the fulfilment of the condition: re River Steamer Co., L. R. 6 Ch. at p. 828 (1871); Green v. Humphreys, 26 Ch. D. at p. 479 (1884).

38. Where part payment is relied upon as an acknowledgment, it must be under such circumstances that a promise to pay may be inferred in fact, not merely implied in law: Morgan v. Rowlands, L. R. 7 Q. B. at p. 498 (1872).

39. A note dated in 1857 was made payable 3 months after demand with no mention of interest. Interest was paid in 1857 and 1858, and indorsed on the note. The maker died in 1869, and the payee in 1878, being still the holder. On a claim by the executor of the payee, held, that time ran from the first payment of interest, and independent of the statute it would be presumed to have been paid: in re Rutherford, L. R. 14 Eq. 687 (1880).

40. Where a demand note was given and dated July 24th for a loan, but the money was not paid to the maker until September 8th, the statute (probably) runs from July 24th: Buccleugh v. Eden, 5 T. L. R. 690 (1889).

Payment anger; its

2. Subject to the provisions hereinafter contained, when a bill is paid by the drawer or indorser, it is not discharged; but

(a.) Where a bill payable to, or to the order of, a third party is paid by the drawer, the drawer may enforce payment thereof against the acceptor, but may not re-issue the bill;

(b.) Where a bill is paid by an indorser, or where a bill payable to drawer's order is paid by the drawer, the party paying it is remitted to his former rights as regards the acceptor or antecedent parties, and he may, if he thinks fit, strike out his

by drawer or indor

effect.

§ 59. own and subsequent indorsements, and again negotiate the bill: Imp. Act, s. 59, (2) (a) (b).

The provisions to which this sub-section is subject are those relating to accommodation bills in sub-section 3.

If the indorser who has paid a bill, desires to negotiate the bill again, he must strike out his own and subsequent indorsements, and if indorsed to him in full he must re-indorse it.

The present section contemplates payment at or after maturity; where a bill before maturity is negotiated back to the drawer or an indorser, he may re-issue it, but cannot enforce the bill against any intervening party to whom he was previously liable: section 37.

In France, payment by the drawer or an endorser discharges the bill: Pothier, Change, No. 106.

ILLUSTRATIONS.

1. The indorser who pays a note at maturity, may at once proceed against the prior parties who are liable to him: Latham v. Norton, 6 U. C. O. S. 82 (1841); McNabb v. Wagstaff, 5 U. C. Q. B. 688 (1849).

2. The drawer drew a bill to his own order and specially indorsed it. After dishonor it came back into his hands; he struck out the special indorsement, and indorsed it to plaintiff who was held entitled to recover from the acceptor: Black v. Strickland, 3 O. R. 217 (1883); Callow v. Lawrence, 3 M. & S. 95 (1814); Hubbard v. Jackson, 4 Bing 390 (1827).

3. An indorser who pays is not entitled to and does not need conventional subrogation against prior parties: Bove v. Macdonald, 16 L. C. R. 191 (1865).

4. Payment of a bill by the drawer does not discharge the bill or free the acceptor: Goodall v. Exchange Bank, M. L. R. 3 Q. B. 430 (1887).