$.91 Dispense with. cable. 6. Delay in the post office where it was mailed in ample tíme: Windham Bank v. Norton, 22 Conn. 213 (1852); Pier v. Heinrichschoffen, 29 Am. Rep. 501 (1877). 92. Presentment for payment is dispensed with, Impracti- (a) where, after the exercise of reasonable dilidence, presentment, as required by this Act, cannot be effected; 53 V., c. 33, s. 46 (2). Imp. Act, ibid. The dispensing with presentment for payment under the present section should be distinguished from the delay in presentment which is excused under the preceding section. In many of the cases the distinction is not kept in mind. The circumstances which excuse delay in notice of dishonour or dispense with it are to be found in sections 105 and 106. The different modes in which presentment may be made, and the order in which they should be attempted, are set out in section 88. 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); sec. 106. Whether due diligence has been used is a mixed question of law and fact: Perley v. Howard, 4 N. B. (2 Kerr) 518 (1844). 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). Contra, Venner v. Futvoye, 13 L. C. R. 307 (1863). 3. The dangerous illness of the maker of the note: Roach, 4 N. B. (2 Kerr) 337 (1843). Nowlin v. Baker v. 4. Notice that the acceptor will not pay when due : Birch, 3 Camp. 107 (1811); Hill v. Heap, D. & R. N. P. C. 57 (1823); Ex parte Bignold, 1 Deacon, 712 (1836). See also Nicholson v. Gouthit, 2 H. Bl. 609 (1796). 5. The fact of an acceptor being abroad, when the agent who $92 acepted for him is at the place where the bill was addressed and accepted: Phillips v. Astling, 2 Taunt. 206 (1809). (b) where the drawee is a fictitious person; Fictitious 53 V., c. 33, s. 46 (2b). Imp. Act, ibid. Where the drawee is a fictitious person the holder may treat the instrument as a promissory note: sec. 26; Smith v. Bellamy, 2 Stark. 223 (1817). The fact of the drawee not having capacity to contract does not dispense with presentment for payment. The holder may treat such a bill as a promissory note: sec. 26; and need not present it for acceptance: sec. 79 (a); but it may be that it will be paid if presented and the drawer and indorsers thereby discharged. drawee. (c) as regards the drawer, where the drawee or Useless. acceptor is not bound, as between himself and the drawer, to accept or pay the bill, and the drawer has no reason to believe that the bill would be paid if presented; 53 V., c. 33, s. 46 (2 c). Imp. Act, ibid. A bill accepted for the accommodation of the drawer need not be presented in order to charge him, where he has not provided funds to meet it: Stayner v. Howatt, 15 N. S. (3 R. & G.) 267 (1882); Terry v. Parker, 6 A. & E. 502 (1837); see Bowes v. Howe, 5 Taunt. 30 (1813); Wirth v. Austin. L. R. 10 C. P. 689 (1875); and in re Boyse, Crofton v. Crofton, 33 Ch. D. 612 (1886). It should be presented to charge the indorsers: Knapp v. Bank of Montreal, 1 L. C. R. 252 (1850); Saul v. Jones, 1 E. & E. 59 (1858). (d) as regards an endorser, where the bill was ac- Accommo cepted or made for the accommodation of that dation bill. endorser, and he has no reason to expect that the bill would be paid if presented; 53 V., c. 33, s. 46 (2 d). Imp. Act, ibid. Where a bill was made and accepted for the accommodation of the last indorser and he made no provision for it, § 92 he is liable without presentment but the prior indorsers are not: In re Boutin, Q. R. 12 S. C. 186 (1897); Turner v. Samson, 2 Q. B. D. 23 (1876); see Foster v. Parker, 2 C. P. D. 18 (1876). Waiver. (e) by waiver of presentment, express or in d. Waiver is binding without consideration. It may be either before or after the time for presentment. It may be in writing or verbal, or inferred from conduct or circumstances. It may be in or on the bill itself: sec. 34 (b). ILLUSTRATIONS. 1. A declaration of inability to pay and request for time is a waiver as regards the party making it: McDonnell v. Lowry, 3 U. C. O. S. 302 (1833). 2. A promise to pay after the bill is due with knowledge of the facts is a waiver: McIver v. McFarlane, Taylor U. C. 113 (1824); Macaulay v. McFarlane, Rob. & Jos. Dig. 493 (1840); McCuniffe v. Allen, 6 U. C. Q. B. 377 (1849); McCarthy v. Phelps, 30 ibid. 57 (1870); City Bank v. Hunter, 2 Rev. de Lég. 171 (1847); Johnson v. Geoffrion, 7 L. C. J. 125 (1863); Watters v. Lordly, 4 N. B. (2 Kerr) 13 (1842); Allen v. McNaughton, 9 N. B. (4 Allen) 234 (1858); St. Stephen B. Ry. Co. v. Black, 13 N. B. (2 Han.) 139 (1870); Colwell v. Robertson, 17 N. B. (1 P. & B.) 481 (1877); Whitehouse v. Bedell, 26 N. B. 46 (1886); Deering v. Hayden, 3 Man. 219 (1886); Hopley v. Dufresne, 15 East, 275 (1812); Croxon v. Worthen, 5 M. & W. 5 (1839); Armstrong v. Chadwick, 127 Mass. 156 (1879). 3. Where a bank suspended payment on the day a cheque should have been presented, and the drawer sued the bank for the full amount of his deposit, including this cheque, it was held that he had waived presentment and was liable: Blackley v. McCabe, 16 Ont. A. R. 295 (1889). 4. Waiver of presentment by the payee does not bind the drawer: McLellan v. McLellan, 17 U. C. C. P. 109 (1866). 5. Part payment is a waiver: Rice v. Bowker, 3 L. C. R. 305 (1853). 6. A promise by an indorser to pay a composition on a note if it was not paid at maturity, is not a waiver of presentment or of protest: Union Bank v. Gibeault, 12 Q. L. R. 145 (1886). 7. An offer to give new notes which the holder does not accept is not a waiver: Bank of New Brunswick v. Knowles, 4 N. B. (2 Kerr) 219 (1843). 8. The payee indorsed a note to plaintiff. The maker having absconded, plaintiff on the day of maturity took it to the payee, who handed it back to plaintiff, asking him to keep it. This was a waiyer of presentment: Masters v. Stubbs, 9 N. B. (4 Allen) 453 (1860). 9. Waiver of demand of payment is waiver of presentment: Burton v. Goffin, 5 B. C. R. 454 (1897). 10. Waiver of notice of dishonor is not waiver of presentment: Hill v. Heap, D. & R. N. P. C. 57 (1823); Keith v. Burke, 1 C. & E. 551 (1885). 11. It is no defence that the party making the promise to pay did not know its legal effect: Third Nat. Bank v. Ashworth, 105 Mass. 503 (1870). $ 92 2. The fact that the holder has reason to be- Not dislieve that the bill will, on presentment, be dishon-with. oured, does not dispense with the necessity for presentment. 53 V., c. 33, s. 46 (2 a). Imp. Act, ibid. place 93. When no place of payment is specified in the When no bill or acceptance, presentment for payment is not specified. necessary in order to render the acceptor liable. 53 V., c. 33, s. 52, (1). Imp. Act, ibid. The Imperial Act reads, "when a bill is accepted generally, presentment is not necessary in order to render the acceptor liable." The change was made in this section to correspond with that made in section 38, which provides that an acceptance to pay at a particular specified place is not a qualified acceptance. The same rule applies to the maker of a promissory note: sec. 183. See Wilson v. Brown, 6 Ont. A. R. 87 (1881); Shuter v. Paxton, 5 L. C. J. 55 (1860); Archer v. Lortie, 3 Q. L.R. 159 (1877); Mineault v. Lajoie, 9 R. L. 382 (1877); Rowe v. Young, 2 Bligh H. L. at pp. 467, 468 (1820); Maltby v. Murrells, 5 H. & N. at p. 823 (1860). See also notes and illustrations under section 183. The reason given by Chalmers for the rule in this sec- Where tion is that "at common law the debtor is bound to seek out payment to be his creditor to pay him ": Coke on Littleton, s. 340; Cranley made. v. Hillary, 2 M. & S. 120 (1813); Walton v. Mascall, 13 M. & W. 458 (1844). The general rule in Quebec is that § 93 Where payment to be made. If place Neglect. if no place is indicated in the contract, payment should be made at the domicile of the debtor: C. C. Art. 1152. By Art. 1069 of the Civil Code it is provided that in all contracts of a commercial nature in which the time of performance is fixed, the debtor is put in default by the mere lapse of time, and this would apply to bills and notes not payable on demand, and would provide for interest from their maturity; so that it becomes a mere question of costs, if the debtor when sued pays the money into court. Presentment and notice of dishonour unless dispensed with are necessary to render the drawer and endorsers liable: secs. 85 and 96. 2. When a place of payment is specified in the specified. bill or acceptance, the acceptor, in the absence of an express stipulation to that effect, is not discharged by the omission to present the bill for payment on the day it matures, but if any suit or action be instituted thereon before presentation the costs thereof shall be in the discretion of the court. Delivery on pay. ment. Imperial Reason for change. 3. When a bill is paid the holder shall forthwith deliver it up to the party paying it. 53 V., c. 33, s. 52 (2). Imp. Act, ibid. Section 52 (2) of the Imperial Act reads: "When by the terms of a qualified acceptance presentment for payment is required, the acceptor, in the absence of an express stipulation to that effect, is not discharged by the omission to present the bill for payment on the day that it matures." The change in the first part of the sub-section was made in the Senate to correspond with the change made in section 38 as to an acceptance at a particular specified place; and in the latter part to meet the case of an acceptor providing funds at the proper place and the holder suing without applying there. Section 183 has a similar provision as to promissory notes. See McIver v. McFarlane, Taylor, U. C. 113 (1824); Macaulay v. McFarlane, Rob. & Jos. Dig. 493 (1840); Rice |