§ 139

Statute of Limitations.

ILLUSTRATIONS.

The following expressions have been held not sufficient to take the case out of the statute:

1. "The notes are genuine; that is, I think I made them, but I am under the impression they were paid, but I don't think I am called upon to have any further conversation with you about them": Grantham v. Powell, 6 U. C. Q. B. 494 (1849).

2. "I am sorry to say I cannot do anything for you at present, but shall remember you as soon as possible": Gemmell v. Colton, 6 U. C. C. P. 57 (1856).

3. "If there is anything due plaintiff, I am willing to pay him": Keys v. Pollock, 1 N. S. (1 Thom.) 109 (1839).

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4. A promise to pay as soon as possible," without proof of defendant's ability: Murdoch v. Pitts, 2 N. S. (James) 258 (1854).

5. "I know that it is due, but I will never pay it": Wainman v. Kynman, 1 Ex. 118 (1847). See also Scales v. Jacob, 3 Bing. 638 (1826) Ayton v. Bolt, 4 ibid. 105 (1827); Fearn v. Lewis, 6 ibid. 349 (1830); Brigstocke v. Smith, 1 Cr. & M. 483 (1833); Spong v. Wright, 9 M. & W. 629 (1842).

6. "I never shall be able to pay cash, but you may have any of the goods we have at Y.": Cawley v. Furnell, 12 C. B. 291 (1851).

7. "As I do not recollect the date or the amount of the indorsements, I would thank you to send me a statement of them": Gibson v. Grosvenor, 4 Gray, (Mass.) 606 (1855).

The following have been held to be sufficient to take the case out of the statute:

8. "I shall repeat my assurance of the certainty of your being repaid your generous loan": Collis v. Stack, 1 H. & N. 605 (1857).

9. "I hope to be in H. very soon, when I trust everything will be arranged with Mrs. W.": Edmonds v .Goater, 415 (1852).

10. "The great kindness of your father in lending me the money to purchase my seat on the Stock Exchange places me now in your debt. I must leave it to your generosity whether you will have me liquidate the loan on the sale of my seat," where the seat had been sold: Buccleugh v. Eden, 5 T. L. R. 690 (1889).

11. "I suppose I shall have to pay in the end": Phelps v. Williamson, 26 Vt. 230 (1854).

12. "I supposed the note was paid by A.; and if he does not, I shall have to pay it": Hayden v. Johnson, ibid. 768 (1854).

The following cases further illustrate the various rules above § 139 laid down:

13. Payments made by one of two joint and several makers will not take the case out of the statute, as against the other, unless made expressly as his agent and by his authority: Creighton v. Allen, 26 U. C. Q. B. 627 (1867); Paxton v. Smith, 18 Q. R. 178 (1889); Harris v. Greenwood, 9 O. L. R. 25 (1904).

14. A writing sufficient to take a note out of the statute enures to the benefit of a subsequent holder: Marshall v. Smith, 20 U. C. C. P. 356 (1870).

15. For conflicting decisions in Upper Canada as to prescription claimed under the Lower Canada Statute, see Hervey v. Pridham, 11 U. C. C. P. 329 (1861); King v. Glassford, ibid. 490 (1861); Shiriff v. Holcomb, 2 E. & A. (U. C.) 516 (1864); Hervey v. Jacques, 20 U. C. Q. B. 366 (1861); Darling v. Hitchcock, 28 U. C. Q. B. 439 (1868).

16. The statute begins to run the day after the last day of grace: Edgar v. Magee, 1 O. R. 287 (1882); Ste. Marie v. Stone, 2 Dorion, 369; 5 L. N. 322 (1882).

17. The old rule in Lower Canada was, that a note payable on demand was due from the day of its date, and prescription ran from that time: Laroque v. Andres, 2 L. C. R. 335 (1851). Also under the Code: Brown v. Barden, Q. R. 13 S. C. 151 (1898); Bachand v. Lalumière, Q. R. 21 S. C. 449 (1902); and under this Act: Bank of Ottawa v. McLean, Q. R. 26 S. C. 27 (1903).

18. The absence of the defendant from the country does not interrupt prescription: Darah v. Church, 14 L. C. R. 295 (1861).

19. A note made before a notary "en brevet" was held not to be a promissory note within the meaning of 12 V. c. 22, and C. S. L. C. c. 64, and not subject to the five years' prescription; Gravelle v. Beaudoin, 7 L. C. J. 289 (1863); Lacoste v. Chauvin, ibid. 339 (1863); Seguin v. Bergevin, 16 L. C. R. 415 (1865); Pigeon v. Dagenais, 17 L. C. J. 21 (1872). Crevier v. Sauriole, 6 L. C. J. 257 (1862), overruled. Under the Bills of Exchange Act, it was held to be subject to five years' prescription, like an ordinary note: Guimond v. Blanchard, Q. R. 21 S. C. 106 (1901); Robert v. Charbonneau, 8 R. J. 68 (1902). But this latter case was reversed in Review: Q. R. 21 S. C. 106, note.

20. The lex fori governs as to prescription: Hillsburgh v. Mayer, 18 L. C. J. 69 (1873); Cross v. Snow, 9 L. N. 196 (1886); Lafaille v. Lafaille, 14 R. L. 466 (1886); but held in a case governed by the law before the Code, that where defendant made a note in the United States which was payable there, and before its maturity he absconded and came to Lower Canada, and the holder did not learn his whereabouts until more than five years had passed, the five years' prescription did not apply under the rule, 66 contra non valentem agere non currit prescriptio": Wilson v. Demers, 14 L. C. J. 317 (1870).

Statute of
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tions.

$139

Statute of

Limitations.

21. Where the defendant had frequently written during the five years, asking for delay, prescription was held to have been interrupted: Walker v. Sweet, 21 L. C. J. 29 (1876).

22. A verbal promise to pay a note under $50 during the five years will interrupt prescription: Fuchs v. Legaré, 3 Q. L. R. 11 (1876); but such a promise after the five years have expired will not revive a note: Fiset v. Fournier, 1 L. N. 589 (1878).

23. Where a bill is not accepted in payment of a debt, the prescription of the note does not prevent a recovery on the original debt if it is not prescribed: Robitaille v. Denechaud, Q. L. R. 238 (1879); Mitchell v. Holland. 16 S. C. Can. 687 (1889); Bouchard v. Behrer, 5 R. J. 263 (1898).

24. A conditional offer in writing which is not accepted, does not interrupt prescription; nor does the deposit of collaterals with the holder: McGreevy v. McGreevy, 17 Q. L. R. 278 (1891).

25. Dividends on a note paid by a curator in Quebec interrupt prescription as if the payment had been made by the debtor himself: Boulet v. Metayer, Q. R. 22 S. C. 289 (1902); Hochelaga Bank v. Richard, 15 E. L. R. 575 (1908).

26. Payments on account by one partner take a note out of the statute as against his co-partner also; Sands v. Keator, 5 N. B. (3 Kerr) 329 (1847); Vanwart v. Roberts, ibid. 572 (1847).

27. The action accrued to the plaintiff, an indorser, when the note was transferred to him, and this being more than six years after it was due, his absence beyond the seas was immaterial: Bradbury v. Bailie, 6 N. B. (1 Allen) 690 (1850).

28. Where a note is payable by instalments, each instalment is subject to a separate plea of prescription: Montgomery v. McNair, 7 N. B. (2 Allen) 31 (1850).

29. A bill is payable three months after date or sight. Time runs in favor of the acceptor from the day the bill is payable, not from the day the acceptance is given: Holmes v. Kerrison, 2 Taunt, 323 (1810).

30. A note payable on demand, dated Jan. 1, is not issued until July 1. Time runs in favor of the maker from July 1: Savage v. Aldren, 2 Stark, 232 (1817).

Time runs

31. A note is payable three months after demand. in favor of the maker from the day it is payable: Thorpe v. Coombe, 8 D. & R. 347 (1826).

32. The consignee of goods authorizes the consignor to draw on him against them. The bill is dishonored and the drawer compelled Time runs against him on the implied contract of indemnity from the date of payment only: Huntley v. Sanderson, 1 Cr. & M. 467 (1833).

to pay.

33. A bill is accepted to accommodate the drawer. It is dis- 139 honored, and two years afterwards the acceptor has to pay it. Time runs in favor of the drawer only from the time the acceptor was Statute of compelled to pay and not from maturity: Reynolds v. Doyle, 1 M. Limita& Gr. 753 (1840); in cases of contribution, see Davies v. Humphreys, tions. 6 M. & W. 153 (1840).

34. A bill payable 90 days after sight is dishonored by nonacceptance. As regards the drawer, time runs against the holder from the dishonor and notice thereof, If the bill is presented for payment and again dishonored, no fresh cause of action arises: Whitehead v. Walker, 9 M. & W. 506 (1842).

35. A note is payable on demand, with no mention of interest Proof that interest has been paid on it takes it out of the statute: Bamfield v. Tupper, 7 Ex. 27 (1851).

36. In 1840 a blank acceptance is given to a person who in 1850 fills it up as a bill payable three months after date and negotiates it to a bona fide holder. Time runs in favor of the acceptor only from the day the bill was payable: Montague v. Perkins, 22 L. J. C .P. 187 (1853).

37. Defendant asked plaintiff for a loan, no time for re-payment being fixed. The latter gave him a cheque, which was not cashed at once. In an action to recover the sum lent, time runs from the day the cheque was cashed, and not from its date: Garden v. Bruce, L. R. 3 C. P. 300 (1868).

38. The maker of a note twenty years after it was due, signed his name and the date on the back of the note. Held, a sufficient acknowledgment to take it out of the statute: Bourdin v. Greenwood, L. R. 13 Eq. 281 (1871).

39. To take a case out of the statute there must be an acknowledgment of the debt from which a promise to pay is implied; or an unconditional promise to pay; or a conditional promise, and proof of the fulfilment of the condition: Re River Steamer Co., L. R. 6 Ch. at p. 828 (1871); Green v. Humphreys, 36 Ch. D. at p. 479 (1884).

40. Where part payment is relied upon as an acknowledgment, it must be under such circumstances that a promise to pay may be inferred in fact, not merely implied in law: Morgan v. Rowlands, L. R. 7 Q. B., at p. 498 (1872).

41. A note dated in 1857 was made payable three months after demand with no mention of interest. Interest was paid in 1857 and 1858, and indorsed on the note. The maker died in 1869, and the payee in 1878, being still the holder. On a claim by the executor of the payee, held, that time ran from the first payment of interest, and independent of the statute it would be presumed to be paid: Re Rutherford, 14 Ch. D. 687 (1880).

42. Where a demand note was given and dated July 24th for a loan, but the money was not paid to the maker until September 8th, the statute (probably) runs from July 24th: Buccleugh v. Eden, 5 T. L. R. 690 (1889).

§ 139

Accommodation bill.

43. After the indorsement of a note the maker made a payment to the payee, who had no right to receive the money. Held, that this did not take the case out of the statute: Stamford Banking Co. v. Smith, [18921 1 Q. B. 765.

3. Where an accommodation bill is paid in due course by the party accommodated, the bill is discharged. 53 V., c. 33, s. 59 (3). Imp. Act, ibid.

An accommodation bill is one which the drawee has accepted for the accommodation of the drawer or some other person. The person thus accommodated may or may not be a party to the bill. An accommodation party is one who has signed a bill as drawer, acceptor or endorser without receiving value therefor, and for the purpose of lending his name to some other person: sec. 55.

The principle on which the bill is discharged is, that it has been paid by the person who is in reality primarily liable for the debt; and having no rights against any person, he could not by a transfer after maturity give any rights to another holder: Solomon v. Davis, 1 C. & E. 83 (1883).

If the bill was for the accommodation of several parties and it is paid by one of them, the bill is discharged; but the party who has paid has his recourse against the others.

ILLUSTRATIONS.

1. Where an action against the indorser of a note was dismissed on the ground that he had indorsed for the accommodation of the plaintiffs, this was held to be an answer to an action seeking to hold him responsible as a partner by estoppel in the firm which made the note: Isbester v. Ray, 26 S. C. Can. 79 (1896).

2. Where a bill was accepted for the accommodation of a third party and discounted, its payment by the drawer does not relieve the acceptor: Dill v. Wheatley, 34 N. S. 526 (1901).

3. Where the payee for whose accommodation the bill was made pays it after maturity, the bill is discharged: Watson v. Porter, 5 N. B. (3 Kerr) 137 (1846).

4. Plaintiff took a bill of sale of A.'s goods, undertaking to pay his borrowed money and accommodation notes. The note sued on was made by defendant for A.'s accommodation and indorsed by him and discounted in a bank. Plaintiff paid it at maturity and sued the maker. Held, that although plaintiff did not know it was an accommodation note, it was discharged on his paying it for A. and his action was dismissed: Peters v. Waterbury, 24 N. B. 154 (1884).