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§ 39. payable elsewhere than at the residence or place of business of the drawee, it must be presented for acceptance before it can be presented for payment: Imp. Act, s. 39 (2.)
3. In no other case is presentment for accept
other case, ance necessary in order to render liable any party
to the bill: Imp. Act, s. 39 (3).
Necessary delay for
The second part of this sub-section according to Chalmers (p. 131) settles a point which had not been decided in England. In Upper Canada it had been decided that presentment for acceptance was not necessary in such a case, so that it introduces new law in Ontario: Richardson v. Daniels, 5 U. C. O. S. 671 (1839). This latter is the rule in the United States: Daniel, § 454; Walker v. Stetson, 19 Ohio St. 400 (1869); but not in France: Nouguier, § 1068.
A bill payable at a fixed period after date, or on or at a fixed period after the occurrence of a specified event, need not be presented for acceptance, unless it come within subsection 2. Although not necessary, it is, however, advisable to present such bills for acceptance, in order to secure the liability of the drawee if he accepts, or to have recourse at once against the other parties liable on the bill if he refuses to accept. An agent should in all cases present such bills for acceptance, or he may be held liable for negligence: Allen v. Suydam 20 Wend. (N. Y.) 321 (1838); Pothier, Change, No. 128; Nouguier, § 462. If the bill contain the words "acceptance waived" or equivalent words, it need not be presented except for payment: Reg. v. Kinnear, 2 M. & R. 117 (1838); Freeman v. Boynton, 7 Mass. 483, (1811); Nouguier, § 470.
4. Where the holder of a bill, drawn payable elsewhere than at the place of business or resi
dence of the drawee, has not time, with the exer- § 39. cise of reasonable diligence, to present the bill for acceptance before presenting it for payment on the day that it falls due, the delay caused by presenting the bill for acceptance before presenting it for payment is excused, and does not discharge the drawers and indorsers. Imp. Act, s. 39 (4).
This sub-section is introduced in order to prevent hardship from the rule laid down in sub-section 2. It is applicable to bills payable at a fixed period after date, or on the occurrence of a specified event or at a fixed period after it.
What is "reasonable diligence" will depend upon the facts and circumstances of each particular case.
40. Subject to the provisions of this Act, when a bill payable at sight or after sight is negotiated, the holder must either present it for acceptance or negotiate it within a reasonable time: Imp. Act, s. 40 (1); 54-55 Vict. c. 17 s. 5 (Can.).
The words "at sight or " are not in the Imperial Act, as bills payable at sight being payable on demand need not be presented for acceptance. Our Act of 1890 copied the Imperial Act without making the change in this section to correspond with that in section 10, omitting bills payable at sight from among those payable on demand. This was remedied, and these words added, by the amending Act of 1891.
The rule laid down in this sub-section is that in force in England before the change in the law: Byles (6th Ed.) p. 139; and is also the law in most of the United States: Daniel, § 454; and was in Quebec: C. C. Art. 2291. As to what is a reasonable time, see sub-section 3.
presenting bill pay
If not presented.
As to reasonable time.
The reason for the rule is that the drawer, and prior indorsers, if any, have a right to expect that they shall not be prejudiced by undue delay, as they have an interest in knowing at an early date whether the drawee will accept, and also in case he accepts that the date of payment shall not be unduly postponed, thus extending the period of their liability, and increasing the risk of their losing through the failure of the acceptor.
"Subject to the provisions of this Act."-These provisions are those that relate to excuses for presentment, which are found in section 41, s-s. 2.
2. If he does not do so, the drawer and all indorsers prior to that holder are discharged:
3. In determining what is a reasonable time within the meaning of this section, regard shall be had to the nature of the bill, the usage of trade with respect to similar bills, and the facts of the particular case. Imp. Act, s. 40 (2) (3).
What is a reasonable time to present such a bill for acceptance has been held to be a mixed question of law and fact: Perley v. Howard, 4 N. B. (2 Kerr) 518 (1844); Tindal v. Brown, 1 T. R. 168 (1786); Muilman v. D'Eguino, 2 H. Bl. 565 (1795); Shute v. Robins, 3 C. & P. 80 (1828); Mellish v. Rawdon, 9 Bing. 416 (1832); Mullick v. Radakissen, 9 Moore P. C. 46 (1854); Wallace v. Agry, 4 Mason (U. S.) 336 (1827). But see section 36, s-s. 3, where what is an unreasonable length of time for a demand bill to be in circulation is made a question of fact alone.
No absolute rule has ever been laid down in England, the United States or Canada, as to what is a reasonable time for such presentment. In France, a limit of three months is fixed for Europe and Algeria, four months for Asia,
six months for America and Southern Africa, and a year for $40. the rest of the world: Code de Com. Art. 160, as amended by the law of the 3rd of May, 1862.
1. A bill drawn in Toronto, on August 6th, by a party dealing in bills, on New York, payable at sight, in favor of a a party living in Illinois, to be sent there as a remittance and for circulation, which passed through a number of hands, was presented in New York, on November 10th. The jury found that the delay was not unreasonable, and the court refused a new trial: Boyes v. Joseph, 7 U. C. Q. B. 505 (1850).
2. A bill of exchange was drawn on the 27th of August, and after passing through the hands of two intermediate holders, was presented on the 1st of September, and refused payment, and protested on September 8th, all parties being in Montreal. The holder sued the last indorser. Held that presentation and protest had not been made with due diligence, and action dismised: Harris v. Schwob, 3 R. L. 453 (1871).
3. Defendants indorsed on October 8th, a bill payable after sight, drawn on Liverpool, England. The drawer held it over two mails, and on November 5th sold it for full value to plaintiffs, who remitted it the same day. It was accepted, but the acceptor failed before it became due. Defendants claimed that they were discharged by want of diligence in presenting. Plea struck out on the ground that there was no such delay as would constitute a defence: Wylde v. Wetmore, 1 N. S. D. 504 (1869).
4. A jury having found a verdict against the drawer, on a bill drawn in Windsor, payable in London a month after sight, and presented on the fourth day, the Court held that the delay was not unreasonable and refused a new trial: Fry v. Hill, 7 Taunt. 897 (1817).
5. A bill drawn on August 12th, in Carbonear, Newfoundland, on London, payable 90 days after sight was presented for acceptance, November 16th. There was a daily mail from Carb
§ 40. onear to St. John's, 20 miles, and a tri-weekly mail from St. John's to London. The delay was not explained. The jury found the delay to be unreasonable and the Court refused a new trial: Straker v. Graham, 4 M. & W. 721 (1839).
By or for holder.
Rules as to present
41. A bill is duly presented for acceptance ment tance which is presented in accordance with the follow
Hour and day.
6. A bill drawn at Calcutta, February 16th, on Hong Kong at 60 days after sight was indorsed and negotiated by the drawers. On account of the state of the money market the indorsee kept it five months and then negotiated it. The holder presented it on October 24th, to the drawee at Hong Kong, who refused to accept it. The Supreme Court at Calcutta, found the delay unreasonable, and the Privy Council would not disturb the finding Mullick v. Radakissen, 9 Moore P. C. 46 (1854).
(a.) The presentment must be made by or on behalf of the holder to the drawee or to some person authorized to accept or refuse acceptance on his behalf, at a reasonable hour on a business day and before the bill is overdue: Imp. Act, s. 41 (1) (a).
The holder by whom or whose behalf a bill is presented need not be the owner or even a lawful holder: section 2 (g); Morrison v. Buchanan, 6 C. & P. 18 (1833); Nouguier, § 462.
As to what is a reasonable hour may depend on where the bill should be presented. If at a bank it should be during banking hours; if at another office, during ordinary office hours; if at a private house, it may be earlier in the morning or later in the evening: Parker v. Gordon, 7 East, 385 (1806); Elford v. Teed, 1 M. & S. 28 (1813). Wilkins v. Jadis, 2 B. & Ad. 188 (1831); Cayuga Co. Bank