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 v. 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). present ment. 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 particular office, it is payable generally: Becher v. Amherstburg, 23 U. C. C. P. 602 (1874); McRobbie v. Torrance, 5 Man. L. R. 114 (1888). $ 45. 4. Where a bill is drawn upon, or accepted by Acceptors two or more persons who are not partners, and no partners. place of payment is specified, presentment must be made to them all: Imp. Act, s. 45 (6). not Where drawee dead. Through postoffice. Chalmers says, p. 146: "This is probably declaratory, but the point was not clear. Of course, if one pays, or in refusing payment, acts as the agent of the others, that is enough." Presentment should be made according to subsection 2 (d) (2) (3) (4) ante. If they are in different places, so that presentment cannot be made to all on the day of maturity the bill should be presented to at least one on that day and to the others as soon as practicable. The case is more likely to arise with joint makers of a note payable generally. See Willis v. Green, 5 Hill 232 (1843); Arnold v. Dresser, 8 Allen (Mass) 435 (1864); Union Bank v. Willis, 8 Metc. 504 (1844); Blake v. McMillen, 33 Iowa 150 (1871); Gates v. Beecher, 60 N. Y. 523 (1875); Britt v. Lawson, 22 Hun (N. Y.) 123 (1878). 5. Where the drawee or acceptor of a bill is dead, and no place of payment is specified, presentment must be made to a personal representative, if such there is, and with the exercise of reasonable diligence he can be found: Imp. Act, s. 45 (7). Presentment for acceptance in such a case is excused, but may be made: section 41. In the case of payment it must be presented to the personal representative if at all practicable. See Caunt v. Thompson, 7 C. B. 400 (1849); Dana v. Bradley, 10 N. B. (5 Allen) 292 (1862). 6. Where authorized by agreement or usage, a presentment through the post office is sufficient: Imp. Act, s. 45 (8). It is said that no such usage has existed in any part of § 45. Canada. The policy of the Act is to use the post office as far as practicable. In England and the United States such a usage has existed for many years, especially in the case of cheques. See Hare v. Henty, 10 C. B. N. S. 65 (1861); Prideaux v. Criddle, L. R. 4 Q. B. at p. 461 (1869); Heywood v. Pickering, L. R. 9 Q. B. at p. 432 (1874); Windham Bank v. Norton, 22 Conn. 214 (1852); Berg v. Abbott, 83 Penn. St. 177 (1876); Shipsey v. Bowery National Bank, 59 N. Y. 485 (1875). in city, etc., 7. Where the place of payment specified in the No place bill or acceptance is any city, town or village, and specified. no place therein is specified, and the bill is presented at the drawee's or acceptor's known place of business or known ordinary residence therein, and, if there is no such place of business or residence the bill is presented at the post office, or principal post office in such city, town or village, such presentment is sufficient. There is no corresponding clause in the Imperial Act, and it is new law in Canada: Commons Debates, 1890, p. 1474. The former practice in England when the drawer or acceptor had no place of business or residence, was to present it at all the banks in the place: Hardy v. Woodroofe, 2 Stark. 319 (1818). This clause furnishes a very simple rule for a place where there is a large number of banks, or where there is no bank at all. delay in 46. Delay in making presentment for payment Excuse for is excused when the delay is caused by circumstances present beyond the control of the holder, and not imputable payment ment for § 46. to his default, misconduct or negligence. When the cause of delay ceases to operate, presentment must be made with reasonable diligence: Imp. Act, s. 46 (1). When such present ment is The present sub-section mentions the circumstances under which delay is excused, while the cause of delay exists; the following one, those under which presentment is dispensed with entirely. ILLUSTRATIONS. The following have been recognized as valid excuses for such delay : 1. A request from the drawer or indorser sought to be charged: Burnett v. Monaghan, 1 R. C. 473 (1871); Lord Ward v. Oxford Ry. Co. 2 DeG. M. & G. 750 (1852). 2. A note was lying at a branch bank where it was payable. The new agent was not aware of its being there until noon of the day after maturity, when he had it protested and notice given. Held, sufficient to bind the indorser: Union Bank v. McKilligan, 4 Man. L. R. 29 (1887). 3. The death of the holder: Rothschild v. Currie, 1 Q. B. at p. 47 (1841); Pothier, Change, No. 144; Nouguier, §§ 1107, 1108. 4. A state of siege or war, rendering it impracticable: Patience v. Townley, 2 Smith, 223 (1805); Bond v. Moore, 93 U. S. (3 Otto) 593 (1876); 3 Randolph, § 1324. 5. A moratory law, passed in consequence of war, postponing the maturity of bills 3 months: Rouquette v. Overmann, L. R. 10 Q. B. 525 (1875). 6. Delay in the post office where it was mailed in ample time: Windham Bank v. Norton, 22 Conn. 213 (1852); Pier v. Heinrichschoffen, 29 Am. Rep. 501 (1877). 2. Presentment for dispensed with with. for payment is dispensed (a.) Where, after the exercise of reasonable § 46. diligence, presentment, as required by this Act, when cannot be effected; The fact that the holder has reason to believe that the bill will, on presentment, be dishonored, does not dispense with the necessity for presentment: Imp. Act, s. 46 (2) (a). The dispensing with presentment for payment under the present sub-section should be distinguished from the delay in presentment which is excused under the preceding clause. In many of the cases the distinction is not kept in mind. The circumstances which excuse delay in notice of dishonor or dispense with it are to be found in section 50. The different modes in which presentment may be made, and the order in which they should be attempted are set out in section 45. If after the exercise of reasonable diligence, a bill cannot be presented in any one of these ways, presentment is dispensed with entirely: Forward v. Thompson, 12 U. C. Q. B. 194 (1854), Whether due diligence has been used is a mixed question of law and fact: Perley v. Howard, 4 N. B. (2 Kerr) 518 (1844). impracticable. ILLUSTRATIONS. The following have been held not to be sufficient reasons for dispensing with presentment : 1. The fact of the bill being overdue when indorsed: Davis v. Dunn, 6 U. C. Q. B. 327 (1850). 2. The insolvency of the acceptor: Quebec Bank v. Ogilvy, 3 Dorion 200 (1883); Esdaile v. Sowerby, 11 East 117 (1809); Bowes v. Howe, 5 Taunt, 30 (1813); Sands v. Clarke, 8 C. B. 751 (1849). |