Presentment for acceptance in such a case is excused, but may be made: sec. 78 (c). 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). § 87 Place of. 88. A bill is presented at the proper place,-(a) where a place of payment is specified in the When bill or acceptance, and the bill is there presented; 53 V., c. 33, s. 45 (2 d 1). Imp. Act, s. 45 (1 a). The words " or acceptance" are not in the Imperial Act or the Negotiable Instruments Law. According to Chalmers the word "bill" includes acceptance. He says, p. 148: "The place of payment may be specified either by the drawer or the acceptor": Gibb v. Mather, 2 Cr. & J. 254 (1832); Saul v. Jones, 1 E. & E. 59 (1858). Where a bill was payable at the office of the acceptor, Swansea, and was presented to him personally at Newport, it was held that an indorser was not liable: Beirnstein v. Usher, 11 T. L. R. 356 (1895). In England it is only when the acceptance states that the bill is to be paid at a particular place and not elsewhere that it must be presented there. So also formerly in Ontario as to both bills and notes, and in Prince Edward Island as to bills: see ante p. 116. In Canada it is now sufficient to name the place of payment in the bill or acceptance without the additional words: sec. 38 (4). When a place of payment is named it should be presented there: C. C. Art. 2307; O'Brien v. Stevenson, 15 L. C. R. 265 (1865); Ferrie v. Rykman, Draper U. C. 61 (1830); Driggs v. Waite, 6 U. C. O. S. 310 (1842); Darling v. Gillies, 20 N. S. 423, 9 C. L. T. 120 (1888); Clayton v. McDonald, 25 N. S. 446 (1893); Biggs v. Wood, 2 Man. 272 (1885); Philpott v. Bryant, 3 C. & P. 244 (1827). If the bill is at the bank or other place of payment at its maturity, and the acceptor has no assets there, this is sufficient: Bailey v. Porter, 14 M. & W. 44 (1845); Merchants Bank v. Mulvey, 6 Man. 467 (1890). specified. 88 At proper place. specified. The rule in the United States is the same as that now settled in Canada: Daniel, §§ 643, 644; Bank of U. S. v. Smith, 11 Wheaton (U. S.) 171 (1826); Cox v. National Bank, 100 U. S. (10 Otto) 712 (1879); Neg. Insts. Law, § 133. Where a person accepts a bill payable at his own bank, it is in effect an order to the bank to pay it unless notified to the contrary, and to charge it to his account: Robarts v. Tucker, 16 Q. B. 560 (1851); Bank of England v. Vagliano, [1891] A. C. 107. If a bill is payable at a bank in a town where there is a clearing-house, it has been held in England that presentment through the clearing-house is sufficient: Reynolds v. Chettle, 2 Camp. 596 (1811); Harris v. Packer, 3 Tyr. 370 (1833); Boddington v. Schlenker, 4 B. & Ad. 752 (1833). If alternative places are named it is sufficient to present it at one: Beeching v. Gower, Holt N. P. C. 313 (1816). A note made in Boston and payable "at any bank" means any bank in Boston: Baldwin v. Hitchcock, 12 N. B. (1 Han.) 310 (1869). A note dated at Brandon, Man., and made payable "at the Imperial Bank," is payable at the office of that bank in. Brandon, and not at the head office in Toronto: Commercial Bank v. Bissett, 7 Man. 586 (1891). When not (b) where no place of payment is specified, but the address of the drawee or acceptor is given in the bill, and the bill is there presented; When no address is given. Other cases. (c) where no place of payment is specified and no These rules have been generally followed in Canada, § 88 England and the United States. A note payable generally was left for collection at a bank in the town where the maker lived. Before it matured he left town. A clerk went to present it at the house where he formerly lived, and could not learn there where he had gone to. He had heard before the note matured that the maker had left town, but heard different reports as to where he had gone. No enquiry was made at any of these places. It was proved that his leaving was no secret, and his business partner was not asked as to his whereabouts. Held, that reasonable diligence was not used and the indorser was released: Browne v. Boulton, 9 U. C. Q. B. 64 (1851). The maker of a promissory note, a merchant, having absconded before the note became due and closed his store, it was held that presentment at his late dwelling-house was sufficient without proof of presentment at the store, or that the store remained closed on the day the note fell due: Robinson v. Taylor, 4 N. B. (2 Kerr) 198 (1843). The maker of a note was proved to have occupied an 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. 587 (1879); Evans v. Foster, 13 N. S. 66 (1879); Sharp v. Power, 33 N. S. 371 (1900); 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 (1810); West v. Brown, 6 Ohio St. 542 (1856); Granite Bank v. Ayers, 16 Pick. (Mass.) 392 (1835). No place specified. ment. 89. Where a bill is presented at the proper place Sufficient as aforesaid and after the exercise of reasonable presentdiligence, no person authorized to pay or refuse payment can there be found no further presentment to the drawee or acceptor is required. V., c. 33, s. 45, (3). Imp. Act, s. 45 (5). 53 ment. $89 It is the duty of the acceptor to have some person at the Sufficient proper place, on the day a bill matures, to pay it. If no perpresent- son 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 dishonoured: Hine v. Allely and Buxton v. Jones, supra, Crosse v. Smith, 1 M. & S. at p. 554 (1813). Present ment at Before the Act it was considered that where 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. 114 (1888). 90. Where the place of payment specified in the post office. bill or acceptance is any city, town or village, and 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. 53 V, c 33, s 45 (7). Through post office. 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 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. 2. Where authorized by agreement or usage, a presentment through the post office is sufficient. 53 V., c 33, s 45 (6). Imp. Act, s. 45 (8). It is a customary and legal method for a bank to present through the mail a cheque drawn on one of its correspondents: The Queen v. Bank of Montreal, 1 Exch. Can. 154 (1886). 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). $90 presentment. 91. Delay in making presentment for payment Delay in is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct or negligence. 2. When the cause of delay ceases to operate, Diligence. presentment must be made with reasonable diligence. 53. V., c. 33, s. 46 (1). Imp. Act, ibid. The present 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. 29 (1886). 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). M'L.B.E.A.-17 |