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$ 59. pens: or debts with a term until the term has expired: Art. 2236. Any one or more of the following prescriptions may be invoked in Quebec :-(1) Any prescription entirely acquired under a foreign law, on a bill payable outside of Quebec, in favor of a person living abroad. (2) Any prescription entirely acquired in Quebec, reckoning from maturity, on a bill payable there, when the party was domiciled there at maturity, in other cases from the time he became domiciled there. (3) Any prescription resulting from the lapse of successive periods in the preceding cases, when the first period elapsed under the foreign law: Art. 2190. As to a conflict of these laws, see section 71 and notes thereon.
In other provinces.
In the other provinces the time required is 6 years. The English Statutes, 21 James I. c. 16, and 3 & 4 Anne c. 8, establishing this limitation as to bills and notes, were introduced into the other provinces as set out ante pp. 10-18; but were never law in Lower Canada: Butler v. MacDougall, 2 Rev. de Leg. 70 (1835); Russell v. Fisher, 4 L. C. R. 237 (1854); Langlois v. Johnston, ibid. 357 (1854). There has also been provincial legislation fixing this time in Nova Scotia and New Brunswick: R. S. N. S. c. 112; C. S. N. B. c. 85. Under these Acts a promise or acknowledgment must be in writing and signed by the party chargeable, to take a case out of the statute. Payment may have such effect, but an indorsement on a bill or note by the party receiving or his agent, is not sufficient. No person is liable on account of the act or promise of his co-contractor or debtor, and one may be liable and may be sued without the other. Actions by or against minors, married women, or insane persons may be brought within six years from the removal of the disability. In New Brunswick, absentees are placed on the same footing; in Nova Scotia the provision applies only to actions to be brought against them. In Ontario there are two Acts-R. S. O. c. 60, relating to the Limitation of Actions, and c. 123, to Written Promises. The former
allows minors and persons non compos mentis six years after § 59. the removal of the impediment to bring an action; allows the same time after his return to the province, to sue an absentee; and provides that time shall run in favor of a joint debtor, although one or more joint debtors may be out of the province. Chapter 123 provides that a promise to take a case out of the Statute, must be in writing and signed by the party chargeable; that where there are joint contractors, or executors or administrators of any contractor, a promise or payment by one shall not bind the others; that no indorsement on a bill or note by the party receiving payment shall be sufficient; and that a ratification after majority, of a contract during infancy, must be in writing.
Ordinarily the statute begins to run when a bill matures When it or is dishonored. If it is payable on demand, it has been run. held in Quebec, that prescription runs from its date or its issue (illustration no. 17 post); and this was considered to have been the case in England: Byles, p. 56. It has, however, been considered latterly that bills payable on or after demand, or at sight, or a fixed period after sight. should be on the same footing as other bills, and the statute should only run from their dishonor or maturity. See re Boyse, 33 Ch. D. 612 (1886); re Bethell, 34 Ch. D. 561 (1887).
See section 57 (a) (2), where interest, as damages on a dishonored bill, runs from the time of presentment for payment, if the bill is payable on demand, and from the maturity of the bill in any other case. The principle there involved is somewhat analogous to that in the present question.
Chalmers (p. 289) lays down the following five rules as Law of embodying the law of England on the subject:
1. Subject to the case provided for by section 48 (1), and rule 5, no action on a bill can be maintained against any party
thereto after the expiration of six years from the time when a cause of action first accrued to the then holder against such party.
2. As regards the acceptor, time begins to run from the maturity of the bill, unless
(1) Presentment for payment is necessary in order to charge the acceptor, in which case time (probably) runs from the date of such presentment; or
(2) The bill is accepted after its maturity, in which case time (probably) runs from the date of acceptance.
3. As regards the drawer or an indorser, time (generally) begins to run from date when notice of dishonor is received.
4. When an action is brought against a party to a bill to enforce an obligation collateral to the bill, though arising out of the bill transaction, the nature of the particular transaction determines the period from which the time begins to run.
5. Any circumstance which postpones or defeats the operation of the Statute of Limitations in the case of an ordinary contract postpones or defeats it in like manner in the case of a bill. No indorsement or memorandum of any payment written or made upon a bill by or on behalf of the party to whom such payment is made, is sufficient to defeat the operation of the
The following expressions have been held not sufficient to take the case out of the statute:
1. "The notes are genuine; that is, I think I made them, but I am under the impression they were paid, but I don't think I am called upon to have any further conversation with you about them": Grantham v. Powell, 6 U. C. Q. B. 494 (1849).
2. "I am sorry to say I cannot do anything for you at present, but shall remember you as soon as possible": Gemmell v. Colton, 6 U. C. C. P. 57 (1856).
3. "If there is anything due plaintiff, I am willing to pay § 59. him": Keys v. Pollock, 1 N. S. (1 Thom. 2nd ed.) 109 (1839).
4. A promise to pay "as soon as possible," without proof of defendant's ability: Murdoch v. Pitts, N. S. (James) 258 (1854).
5. "I know that it is due but I will never pay it ": Wainman v. Kynman, 1 Ex. 118 (1847). See also Scales v. Jacob, 3 Bing. 638 (1826); Ayton v. Bolt, 4 ibid. 105 (1827); Fearn v. Lewis, 6 ibid. 349 (1830); Brigstocke v. Smith, 1 Cr. & M. 483 (1833); Spong v. Wright, 9 M. & W. 629 (1842).
6. "I never shall be able to pay cash, but you may have any of the goods we have at Y.": Cawley v. Furnell, 12 C. B. 291 (1852).
7. "As I do not recollect the date or the amount of the indorsements, I would thank you to send me a statement of them": Gibson v. Grosvenor, 4 Gray, (Mass.) 606 (1855).
The following have been held to be sufficient to take the case out of the statute:
8. "I shall repeat my assurance of the certainty of your being repaid your generous loan": Collis v. Stack, 1 H. & N. 605 (1857).
9. "I hope to be in H. very soon, when I trust everything will be arranged with Mrs. W.": Edmonds v. Goater, 15 Beavan 415 (1852).
10. "The great kindness of your father in lending me the money to purchase my seat on the Stock Exchange places me now in your debt. I must leave it to your generosity whether you will have me liquidate the loan on the sale of my seat," where the seat had been sold: Buccleugh v. Eden, 5 T. L. R. 690 (1889).
11. "I suppose I shall have to pay in the end": Phelps v. Williamson, 26 Vt. 230 (1854).
12. "I supposed the note was paid by A.; and if he does not, I shall have to pay it": Hayden v. Johnson, ibid. 768 (1854).
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).
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