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to is that relating to cheques which are bills of exchange § 45. payable on demand. section 72. As to a "reasonable time" see section 40, s-s. 3. In France the same delays are fixed for presenting for payment a bill payable on demand as for presenting for acceptance a bill payable after sight: Code de Com. Art. 160 as amended.
As to the delay for presenting for payment promissory notes payable on demand, see section 85.
(c.) Presentment must be made by the holder By whom, or by some person authorized to receive payment on his behalf, at the proper place, as hereinafter defined, either to the person designated by the bill as payer or to his representative or some person authorized to pay or refuse payment on his behalf, if, with the exercise of reasonable diligence, such person can there be found; Imp. Act, s. 45 (3.)
This clause differs from that in the Imperial Act in two Change particulars. There the words "at a reasonable hour on a perial Act. business day" follow the words "on his behalf" in the second line; and the words "or to his representative" in the fifth line are not found in the Imperial Act. Our Act does not specify the hour of presentment for payment; but section 51, s-s. 6 (b) provides that a protest shall not be made until after three o'clock in the afternoon. The Quebec Civil Code provided that a bill should be presented "in the afternoon," and if payable at a bank" either within or after the usual hours of banking: " Art. 2806.
The English rule has been stated as follows: If a bill Rules vary. be payable at a bank it must be presented within banking hours: Elford v. Teed, 1 M. & S. 28 (1813); Parker v. Gordon, 7 East, 385 (1806); Whitaker v. Bank of England, 1 C. M. & R. 750 (1835); if at a merchant's place of busiM'C.B.E.A.-17
$ 45. ness, then within ordinary business hours: Barclay v. Bailey, 2 Camp. 527 (1810), time 8 p.m.; Morgan v. Davison, 1 Stark. 114 (1815), time 6.30 p.m.; Allen v. Edmundson, 2 Exch. 723 (1848); if at a private house, probably a presentment up to bed-time would be sufficient: Triggs v. Newnham, 10 Moore 249 (1825), time 8 p.m.; Wilkins v. Jadis, 2 B. & Ad. 188 (1831).
In Quebec it has been held that presentment at the closed doors of a bank after its usual office hours was not sufficient to base a protest upon: Watters v. Reiffenstein, 16 L. C. R. 297 (1866).
In New Brunswick where a note was payable at a "store," the only evidence was that when the holder went to present it the store was closed. It was held that in the absence of evidence it might be inferred that it was closed in the due course of business, and that the presentment was not made at a reasonable time: Patterson v. Tapley, 9 N. B. (4 Allen) 292 (1859). Presentment at the door of a store which was closed at 5 p.m. held sufficient: Reed v. Kavanagh, 9 N. B. (4 Allen) 457 (1860).
In Massachusetts a presentment at the maker's residence, ten miles from Boston, at 9 p.m. was held sufficient, although he and his family had retired: Farnsworth v. Allen, 4 Gray, 453 (1855). In Maine a presentment at the maker's house a few minutes before midnight, when he was wakened up, was held insufficient: Dana v. Sawyer, 22 Me. 244 (1843).
(d.) A bill is presented at the proper place :(1.) Where a place of payment is specified in the bill or acceptance, and the bill is there presented; Imp. Act, s. 45 (4) (a).
The words "or acceptance or acceptance" are not in the Imperial Act. According to Chalmers the word "bill" includes
acceptance. He says, p. 145, “The place of payment may § 45. be specified either by the drawer or the acceptor ": Gibb v. Mather, 2 Cr. & J. 254 (1832); Saul v. Jones, 1 E. & E. 59 (1858). In England it is only when the acceptance states that the bill is to be paid at a particular place and not elsewhere that it must be presented there. So also formerly in Ontario as to both bills and notes, and in Prince Edward Island as to bills: see ante p. 110.
In Canada under the Act it is now sufficient to name the place of payment in the bill or acceptance without the additional words: section 19, s-s. 2 (a).
When a place of payment is named it should be presented there: C. C. Art. 2307; O'Brien v. Stevenson, 15 L. C. R. 265 (1865); Ferrie v. Rykman, Draper U. C. 64 (1830); Driggs v. Waite, 6 U. C. O. S. 310 (1843); Darling v. Gillies, 20 N. S. 423, 9 C. L. T. 423 (1888); Biggs v. Wood, 2 Man. L. R. 272 (1885); Philpot v. Briant, 3 C. & P. 244 (1827).
The rule in the United States is the same as that now settled in Canada: Daniel, §§ 643, 644; Bank of U. S. v. Smith, 11 Wheaton (U. S.) 171 (1826); Cox v. National Bank, 100 U. S. (10 Otto) 712 (1879).
If a bill is payable at a bank in a town where there is a clearing-house, it has been held in England that presentment through the clearing-house is sufficient: Reynolds v. Chettle, 2 Camp. 596 (1811); Harris v. Packer, 3 Tyr. 370 (1833); Boddington v. Schlenker, 4 B. & Ad. 752 (1833).
If alternative places are named it is sufficient to present it at one: Beeching v. Gower, Holt N. P. C. 313 (1816).
A note made in Boston and payable "at any bank," means any bank in Boston: Baldwin v. Hitchcock, 12 N. B. (1 Han.) 310 (1869).
No place, and no address.
(2.) Where no place of payment is specified, but the address of the drawee or acceptor is given in the bill, and the bill is there presented;
(3.) Where no place of payment is specified and no address given, and the bill is presented at the drawee's or acceptor's place of business, if known, and if not, at his ordinary residence, if known;
(4.) In any other case, if presented to the drawee or acceptor wherever he can be found, or if presented at his last known place of business or residence: Imp. Act, s. 45 (4) (b) (c) (d); C. C. (2308).
These rules have been generally followed in Canada, England, and the United States.
A note payable generally was left for collection at a bank in the town where the maker lived. Before it matured he left town. A clerk went to present it at the house where he formerly lived, and could not learn there where he had gone to. He had heard before the note matured that the maker had left town, but heard different reports as to where he had gone. No enquiry was made at any of these places. It was proved that his leaving was no secret, and his business partner was not asked as to his whereabouts. Held, that reasonable diligence was not used and the indorser was released: Browne v. Boulton, 9 U. C. Q. B. 64 (1852).
The maker of a promissory note, a merchant, having absconded before the note became due and closed his store, it was held that presentment at his late dwelling house was sufficient without proof of presentment at the store, or that the store remained closed on the day the note fell due: Robinson v. Taylor, 4 N. B. (2 Kerr) 198 (1843).
The maker of a note was proved to have occupied an § 45. office up to May 1st, after which there was no direct evidence of occupation, but his desk remained there as before. Held, in the absence of any proof of his having changed his office, that presentment of the note there after the 1st of May was sufficient: Kinnear v. Goddard, 9 N. B. (4 Allen) 559 (1860.)
See Fitch v. Kelly, 44 U. C. Q. B. 578 (1879); Evans v. Foster, 13 N. S. 66 (1879); Hine v. Allely, 1 N. & M. 433 (1833); Buxton v. Jones, 1 M. & Gr. 83 (1840); McGruder
Bank of Washington, 9 Wheaton (U. S.) 598 (1824); Sussex Bank v. Baldwin, 2 Harrison (N. J.) 487 (1840); West v. Brown, 6 Ohio St. 542 (1855); Granite Bank v. Ayres, 15 Pick. (Mass.) 392 (1835).
3. Where a bill is presented at the proper place, Sufficient and, after the exercise of reasonable diligence, no person authorized to pay or refuse payment can be found there, no further presentment to the drawee or acceptor is required: Imp. Act, s. 45 (5).
It is the duty of the acceptor to have some person at the proper place, on the day a bill matures, to pay it. If no person is there prepared to pay, or authorized to refuse payment, or if the place be closed during reasonable hours, no further presentment is required, and the bill may be treated as dishonored: Hine v. Allely and Buxton v. Jones, supra; Crosse v. Smith, 1 M. & S. at p. 554 (1813).
Before the Act it was considered that where a bill is payable at a bank which has ceased to exist or which has closed that particnlar office, it is payable generally: Becher v. Amherstburg, 23 U. C. C. P. 602 (1874); McRobbie v. Torrance, 5 Man. L. R. 114 (1888).