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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, 3 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 original 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) 81 (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).
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 (1833).
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).
2. Subject to the provisions hereinafter con- Payment tained, when a bill is paid by the drawer or an ser; its 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
§ 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.
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).
5. The indorser of a bill writes to the drawer of a bill, pro- $ 59. mising to "retire" it, and accordingly takes it up before maturity. It is not discharged: Elsam v. Denny, 15 C. B. at p. 94 (1854).
6. The drawer or indorser of a bill who pays, is a quasisurety for the acceptor, and as such is entitled to the benefit of any securities deposited with the holder by the acceptor: Duncan v. N. & S. Wales Bank, 6 App. Cas. 1 (1880).
3. Where an accommodation bill is paid in due Accommo course by the party accommodated, the bill is discharged. Imp. Act, s. 59 (3).
An accommodation bill is one which the drawee has accepted for the accommodation of the drawer or some other person. The person thus accommodated may or may not be a party to the bill. For a definition of an accommodation party and his liabilities, see section 28.
The principle on which the bill is discharged is, that it has been paid by the person who is in reality primarily liable for the debt; and having no rights against any person, he could not by a transfer after maturity give any rights to another holder: Solomon v. Davis: 1 C. & E. 83 (1883).
If the bill was for the accommodation of several parties, and it is paid by one of them, the bill is discharged, but the party who has paid has his recourse against the others.
If several persons indorse a bill or note for the accommodation of the acceptor or maker, and one of them pays it, the whole circumstances attendant upon its making, issue and transference, may be legitimately referred to for the purpose of ascertaining the true relation to each other of the parties who put their signatures upon it, and reasonable inferences from these facts and circumstances are admitted to the effect of qualifying, altering, or even inverting the