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$ 84. (1885); Block v. Lawrance, ibid. 2 S. C. 279 (1886).
Contra Beaulieu v. Demers, 5 R. L. 695 (1874).
As to the possible effect of section 8 of the amending Act of 1891 upon this point see the notes to that section.
As to number.
2. Where a note runs “I promise to pay,” and is signed by two or more persons, it is deemed to be their joint and several note. Imp. Act, s. 85 (2).
This has long been recognized as law in England: March v. Ward, Peake, 130 (1792); Clark v. Blackstock, Holt N. P. 474 (1816). And in the United States: Monson v. Drakely, 40 Conn. 552 (1873); Hemmenway v. Stone, 7 Mass. 58 (1810); Partridge v. Colby, 19 Barb. (N. Y.) 248 (1855); Ely v. Clute, 19 Hun (N. Y.) 35 (1859). As also in Ontario: Creighton v. Fretz, 26 Q. C. Q. B. 627 (1867).
It remains to be seen whether the enunciation of the above rule, taken in connection with section 8 of the Act of 1891, will be held to have modified the law of Quebec, on a note which reads "we promise."
Note pay. able on
85. Where a note payable on demand has been demand indorsed, it must be presented for payment within a
reasonable time of the indorsement: if it is not so presented, the indorser is discharged; if however, with the assent of the indorser it has been delivered as a collateral or continuing security it need not be presented for payment so long as it is held as such security.
2. In determining what is a reasonable time, regard shall be had to the nature of the instrument, the usage of trade, and the facts of the particular case: Imp. Act, s. 86 (1) (2).
The last clause of the first sub-section is not in the $ 85. Imperial Act, which ends with the word “discharged.” The added part, however, agrees with the law as laid down in the English cases.
A note is payable on demand which is expressed to be payable on demand, or on presentation, or in which no time for payment is expressed, or which has been indorsed when overdue: sections 10 and 88.
Section 45, 8-s. 2 (b), contains similar provisions as to presenting a bill for payment. As to what is “a reasonable time" see ante, y p. 244, 256.
"A promissory note payable on demand is often intended to be a continuing security; it is quite unlike a cheque which is intended to be presented speedily”: per Parke, B., in Brooks v. Mitchell, 9 M. & W. at p. 15 (1844). See also Cripps v. Davis, 12 M. & W. 165 (1843); Bartrum v. Caddy, 1 P. & D 207 (1838); Leith Banking Co. v. Walker, 14 Sess. Cas. 332 (1836); Morgan v. United States, 113 U. S. 501 (1884).
Where a demand note is payable with interest, this has been considered as an indication that an early presentment was not contemplated: Thorne v. Scovil, 4 N. B. (2 Kerr) 557 (1844); Vreeland v. Hyde, 2 Hall (N. Y.) 463 (1829); Seaver v. Lincoln, 21 Pick. (Mass.) 267 (1838); Merritt v. Todd, 23 N. Y. 28 (1861); 'Parker v. Stroud, 31 Hun (N.Y.) 578 (1884).
in The Chartered Mercantile Bank v. Dickson, L. R. 3 P. C. 574 (1871) it was held that where a demand note was indorsed Feb. 16th, but the payment of wbich was not contemplated at any immediate or specific date, but was intended as a continuing security, the indorser was not discharged by the fact that it was not presented to the payee until December 14th.
In Dandurand v. Roulier, 33 L. C. J. 167 (1889), where defendant indorsed a demand note March 28th, 1885, for the maker, a friend whom he knew to be bankrupt, and the note was not protested until August 28th, 1888, the indorser was not discharged, as he was not injured but rather benefited by the delay, $50 having been paid September, 27th, 1887, and the maker's circumstances having improved in the mean time. In this case interest was allowed only from demand.
In Merchants' Bank v. Whitfield, 2 Dorion, 157 (1881), where the directors of a joint stock company indorsed a note of the company which was given to the bank as a continuing security, and it was held for twenty-seven months before payment was demanded, it was held that the indorsers were not discharged.
Defects without notice.
3. Where a note payable on demand is negotiated, it is not deemed to be overdue, for the purpose of affecting the holder with defects of title of which he had no notice, by reason that it appears that a reasonable time for presenting it for payment has elapsed since its issue. Imp. Act, s. 86 (3).
In this respect à note differs from a bill payable on demand or a cheque : section 36, s-s. 3.
For illustrations of the rule laid down in this subsection see Brooks v. Mitchell, 9 M. & W. 15 (1811); Glasscock v. Balls, 24 Q. B. D. at p. 15 (1889); Wethey v. Andrews, 3 Hill (N. Y.) 582 (1842); Losec v. Dunkins, 7 Johns (N. Y.) 70 (1810); Herrick v. Wolverton, 41 N. Y. 581 (1870); Morey v. Wakefield, 41 Vt. 24 (1868); Rhodes v. Seymour, 36 Conn. 6 (1869). See also the cases in the last paragraph under the preceding sub-section.
A promissory note payable on demand with interest, is a present debt, and “at maturity” as soon as given. A
written renunciation thereof by the holder, in order to § 85. meet the requirements of section 61, must be an actual renunciation; and a paper written at the dictation of a dying man that such a note thon mislaid should be des. troyed when found, is not sufficient : re George, Francis v. Bruce, 44 Ch. D. 627 (1890).
86. Where a promissory note is in the body of Present it made payable at a particular place, it must be paten fort presented for payment at that place. But the maker is not discharged by the omission to present the note for payment on the day that it matures. But if any suit or action is instituted thereon against him before presentation, the costs thereof shall be in the discretion of the court. If no place of payment is specified in the body of the note, presentment for payment is not necessary in order to render the maker liable :
The corresponding section in the Imperial Act, 87 (1), reads as follows :—“Where a promissory note is in the body of it made payable at a particular place, it must be presented for payment at that place in order to render the maker liable. In any other case presentment for payment is not necessary in order to render the maker liable." The clause was put into its present form in the Senate.
The rule is now substantially the same as that regarding the presentment for payment of a bill of exchange. See section 45, 8-8. 2 (d), and section 52.
In Prince Edward Island and Ontario, before the Act, a promissory note, like a bill of exchange in England, required to be presented at the place indicated, only in case the words “and not otherwise or elsewhere” were added: R. S. C. c. 123, 8-5. 9, 16. In Canada these words
$ 86. are not necessary in either bills or notes to require their
presentment at the place named in the bill or note.
1. In an action against the maker a plea of want of presentment is of no avail, unless lie allege and prove he had funds at the place named to meet it : Mount v. Dunn, 4 L. C. R. 348 (1854); Rice v. Bowker, 3 L. C. R. 305 (1853). See O'Brien v. Stevenson, 15 L. C. R. 265 (1865).
2. Where action was brought on a note payable generally, five months after its maturity without demand of payment, and defendant pleaded and proved that he had money ready to pay it at maturity, plaintiff was refused costs : Mineault v. Lajoie, 9 R. L. 382 (1877).
3. Where action was brought on a demand note without presenting it for payment, and defendant paid the money into Court, plaintiff was condemned to pay costs : Archer v. Lortie, 3 Q. L. R. 159 (1877); Dorion v. Benoit, 2 L. N. 171 (1879); Lessard v. Genest, Ramsay A. C. 86 (1883).
4. The demand of payment of a note must be accompanied by a tender of it to the maker. Such demand of payment cannot be made publicly at the church door, immediately after divine service, either on a Sunday or a feast of obligation : De la Chevrotiere v. Guilmet, 9 L. N. 412 (1886).
5. A note not payable at any particular place need not be presented for payment, as against the maker: Grant v. Heather, 2 Man. L. R. 201 (1885); Price v. Mitchell, 4 Camp. 200 (1815); Exon v. Russell, 4 M. & S. 507 (1816); Ramchurn v. Lachmeechund, 9 Moore P. C. at p. 70 (1854).
6. The holder of a demand note may sue the maker without proving presentment or demand : Norton v. Ellam, 2 M. & W. at p. 464 (1837); Dodd v. Gill, 3 F. & F, 261 (1862).
7. In the case of a note payable on demand, the Statute of Limitations runs in favor of the maker from the date of the note: Norton v. Ellam, supra No. 6.