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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 then mislaid should be destroyed 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 Presentit made payable at a particular place, it must be note for 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, s-s. 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, s-s. 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 he 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.
8. When a note is made payable at a particular place, pre- § 86. sentment at that place is necessary to render the maker liable: Spindler v. Grellett, 1 Ex. 384 (1847); Sands v. Clarke, 8 C. B. 751 (1849); Vander Donct v. Thelluson, 8 C. B. 812 (1849).
9. If the maker had funds at the place of payment on the day of maturity, and they were left there and finally lost through the neglect of the holder to present the note as, for instance, by the failure of a bank, the maker wonld be discharged, at least to the extent of the loss.
10. The last clause would appear not to give the Court any discretion as to costs if the note was payable generally; but the courts have, as a rule, a discretion as to costs in general.
11. In presenting a note for payment it should be produced and exhibted; but if it is held at the place of payment on the day it matures, no formal presentment is necessary. See ante p. 309; also Fullerton v. Bank of U. S., 1 Peters (U.S.) 604 (1828); Bank of U. S. v. Carneal, 2 ibid. 543 (1829); Chicopee Bank v. Philadelphia Bank, 8 Wall. (U.S.) 641 (1869); Woodbridge v. Brigham, 13 Mass. 556 (1816); Bank of Syracuse v. Hollister, 17 N. Y. 45 (1858).
2. Presentment for payment is necessary in order Liability to render the indorser of a note liable: Imp. Act, s. 87 (2).
For the rules as to presentment for payment, see section 45, which applies to promissory notes with the modifications specified in section 88. The provisions of section 46 as to excuses for the delay in making presentment, or presentment being dispensed with entirely, as well as those relating to notice of dishonor, also apply to notes with the necessary modifications.
See the notes and illustrations under these sections. Also Siddall v. Gibson, 17 U. C. Q. B. 98 (1859); Saunderson v. Judge, 2 H. Bl. 510 (1795); Roche v. Campbell, 3 Camp. 247 (1812); Britt v. Lawson, 22 Hun (N.Y.) 123 (1878).
§ 86. Place for
Liability of maker.
3. Where a note is in the body of it made payable at a particular place, presentment at that place is necessary in order to render an indorser liable; but when a place of payment is indicated by way of memorandum only, presentment at that place is sufficient to render the indorser liable, but a presentment to the maker elsewhere, if sufficient in other respects, shall also suffice. Imp. Act, s. 87 (3).
Where the place of payment is in the body of the note it is part of the contract: O'Brien v. Stevenson, 15 L. C. R. 265 (1865); Howes v. Bowes, 16 East 112 (1812). Where it is merely indicated in a footnote or some other part of the note, it has been a disputed point whether it is part of the contract. The affirmative has been held both in England and the United States. See Trecothick v. Edwin, 1 Stark. 468 (1816); Jones v. Fales, 4 Mass. 244 (1808); Platt v. Smith, 14 Johns. (N.Y.) 368 (1817); Woodworth v. Bank of America, 19 Johns. 391 (1822); Dewey v. Reed, 40 Barb. (N.Y.) 17 (1863). Contra, Cunard v. Tozer, 4 N. B. (2 Kerr) 365 (1844); Price v. Mitchell, 4 Camp. 200 (1815); Exon v. Russell, 4 M. & S. 505 (1816); Masters v. Barretts, 8 C. B. 433 (1849); Hill v. Cooley, 46 Penn. St. 259 (1863).
The Act recognizes such a memorandum, but apparently not as part of the contract, as presentment at the place indicated is made optional.
87. The maker of a promissory note, by making it
(a) Engages that he will pay it according to its
(b) Is precluded from denying to a holder in § 87. due course the existence of the payee and his then Estoppel capacity to indorse: Imp. Act, s. 88 (1) (2).
The position of the maker of a note is similar in most respects to that of the unconditional acceptor of a bill: section 88, s-s. 2. He is the primary debtor; the indorsers being only secondarily liable, until after dishonor and notice, unless the latter is waived or dispensed with. For the liabilities of an acceptor see sections 54 and 57.
It is frequently a disputed question whether the maker of a note is personally liable, or whether he is a mere agent or officer, and the note is that of some principal or corporation. It is impossible to reconcile the conflicting decisions on this point, as regards the acceptors of bills and the makers of notes. It may be said generally that the maker of a note has sometimes been liable on an acceptance expressed in words which, if in a note, would not have bound him personally. See section 17 and the notes and illustrations thereunder. Also Kerr v. Parsons, 11 U. C. C. P. 513 (1861); Corporation of Toronto Township v. McBride, 29 U. C. Q. B. 13 (1869); Archibald v. Brown, 3 L. N. 43 (1879).
(b) See the similar rule as to the acceptor of a bill: section 54, s-e. 3.
A "holder in due course" has been defined in section 29. The reason for this estoppel is that the maker by issuing a note in this form has in effect made these representations to the person who becomes such a holder, and after it is acted upon cannot be allowed to claim the contrary. See Perkins v. Beckett, 29 U. C. C. P. 395 (1878); Taylor v. Croker 4 Esp. 187 (1803); Drayton v. Dale, 2 B. & C. 293 (1823); Smith v. Marsack, 6 C. B. 486 (1848); Lane v. Krekle, 23 Iowa, 401 (1867); Wolke v. Kuhne, 109 Ind. 313 (1886).