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The difference between this section and the English law is, that by 1 and 2 Geo. IV, c. 78, where in bills of exchange the words “not elsewhere” or their equivalent are not inserted, and a bill is accepted payable at a Banker's, such an acceptance is deemed a general acceptance. Under the section, presentment at that Banker’s is necessary to make the maker or drawer liable. The section only provides for discharge of the maker or drawer by default in regular presentment; but since laches, whereby prior parties are discharged from liability, affect the rights of subsequent parties, here such default as would discharge the parties named in the section will discharge indorsers to whom they stand in the place of sureties.
where no ex
70. A promissory note or bill of exchange, not Presentment made payable as mentioned in sections sixty-eight and clusive place sixty-nine, must be presented for payment at the specified. place of business (if any), or at the usual residence, of the maker, drawee or acceptor thereof, as the case may be.
If the person to whom the presentment has to be made has à place of business, it would seem that the presentment must be made at that place of business; and, though, business, when spoken of in connection with negotiable instruments, usually means trade, the words are large enough to include the offices of Government officials and the chambers of barristers or attornies, presentment at which offices or chambers would seem to
71. If the maker, drawee or acceptor of a nego- Presentment tiable instrument has no known place of business or &c., has no fixed residence, and no place is specified in the known place of instrument for presentment for acceptance or pay, residence. ment, such presentment may be made to him in person wherever he can be found.
The cases mentioned in this section are the only ones in which personal presentment is made absolutely necessary. Nothing is said about the person to whom the place of business must be known. It is submitted that the words will not be confined to
the person who should make the presentment, for by the last paragraph of clause (a) of Sec. 76 due search must be made, which includes inquiries
Fixed residence, is also not defined. It would seem, on comparison with the wording of Sec. 70, that, under this section, the want of either a known place of business or fixed residence, is sufficient to make valid, a presentment made personally
anywhere. Presentment of 72. A cheque must, in order to charge the cheque to charge drawer. drawer, be presented at the bank upon which it is
drawn before the relation between the drawer and his Banker has been altered to the prejudice of the drawer.
The Committee in their report upon the draft bill, dated 4th October 1877, state, that this section is founded upon
the English Law,and read with what is now Sec. 84, will, in default of presentment in accordance with its terms, discharge the drawer from all liability. Where a cheque had been given by a solicitor to the plaintiff to discharge a debt due by the defendant, the cheque being dated 9th May, but was not presented till 9th June, at which time the solicitor had no funds to meet it, and it being found by the Court, that if it had been presented earlier, there was a reasonable chance of its being paid ; it was held, that the plaintiff had, by her action in retaining the cheque an unreasonable time, dealt with it as her own, and therefore it operated as payment of defendant's debt, as by the delay, the solicitor's position with the bank on which the cheque had been drawn, had been altered for the worse, and that he was therefore discharged from liability ;2 (see ante Sec. 64 and post Sec. 84 which must be read with this section.) It must be presented at the bank on which it is drawn. So where a Joint Stock Bank had several branches, it was held, that it was only bound to pay its customers' cheques at
Berridge v. Fitsgerald, L. R. Where it was held that as be4 Q. B. 639.
tween the drawer and the holder, 2 Hopkins v. Ware, L. R. 4 Ex. the former is not discharged by 268; Robinson v. Hawksford, 9 Q. the latter's failure to present in due B.52; Alexander v. Burchfield, 7 time, unless he have sustained M. & Gr. 1061; S. C. 3 Scott, N. actual prejudice from the delay; R. 555; Laws v. Rand, 27 L. J. see also London & County Bk. v. (C.P.) 76 ; S. C. 3 C. B. 442 ; Groom, 8 Q. B. D. 288.
that branch, on which they were drawn, and did not violate its engagement by refusing to pay his cheque at another branch."
73. A cheque must, in order to charge any per- Presentment of son except the drawer, be presented within a reason- charge any able time after delivery thereof by such person.
than drawer. This must be read with Sec. 105. The English Rule is that in order to charge the indorser of a cheque it must be presented for payment on the day after he receives it. (see Sec. 65); and a cheque differs from a bill in this respect, that the fact of sending it to an agent for presentment, does not enlarge the time for presentment, so that if instead of presenting it himself, the holder
pays it into his Banker's for collection, he must do so, in time for the Banker to present it during the day following its receipt by him. It is immaterial through whose hands the cheque is presented provided it reaches the drawee in due time.* We have seen Sec. 31, that no person but the drawer of a cheque has a right to compensation from the drawee for neglect to honor a cheque, but, to enable him to claim it, the presentment must, under this section, be within a reasonable time.
74 Subject to the provisions of section thirty- Presentment of one, a negotiable instrument payable on demand instrument
payable on demust be presented for payment within a reasonable mand. time after it is received by the holder.
The provisions of Sec, 31 to which this section is subject, relate to the obligation of the drawee of a cheque having funds in his hands, to pay the amount thereof when duly required to do 80. This section relates to the obligation of the payee or indorsee, of an on demand instrument, to present it for payment within a reasonable time. It must be read with Sec. 105, and there is according to the English authorities, a difference between notes payable on demand, and bills payable on demand. The latter is evidently intended to be presented and paid immediately; but a promissory note payable, on demand is very often intended ori
I Woodland v. Fear, 7 E. & B. M. & Gr. 1061; S. C. 3 Scott, 519; S. C. 26 L. J. (Q. B.) 202. N. R. 555. but see Heywood v.
Moule v. Brown, 4 Bing. N. Pickering, L. R. 9 9. B. 428. C. 266.
4 Prideaux v. Criddle, L. R. 4 · Alexander v. Burchfield, 7 Q. B. 455.
ginally, as a continuing security and negotiated as such.' Where a promissory note made payable on demand, was dated 16th February 1864, and indorsed, but the payment thereof was not contemplated by the maker at any immediate or specific date, and was not presented for payment to the maker until the 14th December of the same year, the Privy Council held, that it appearing from the evidence, that the note was meant to be, to a greater or less extent a continuing security, the delay in presentation, was not in the circumstances of the case unreasonable. That reasonable time was a period, reasonable with reference to the circumstances of each particular case, and that the time at which payment of a promissory note made payable on demand and given as security, was to be demanded and urged upon the maker, must be judged of, not merely with reference to the circumstances of the maker, but with reference also, to the convenience of the indorser, against whom the second demand would be made. And the same rule seems also applicable to other instruments intended for circulation.3
Presentment by 175. Presentment for acceptance or payment may or to agent, re. presentative of be made to the duly authorized agent of the assignee of in. drawee, maker or acceptor, as the case may be, or, solvent. where the drawee, maker or acceptor has died, to
his legal representative, or, where he has been declared an insolvent, to his assignee.
Thiş must be read with Sec. 64, its whole terms are merely permissive. We have already under Sec. 61 considered who may be considered an agent for the purposes of presentment for acceptance, and the same rules will generally apply to presente ment for payment. The reason why presentment and demand should be made at the place of business or residence of the person liable to pay, is, that it is the duty of such person to leave provision for the payment.*
To his legal representative.—By the section there is no obliga1 Brooks v. Mitchell, 9 M. & Litchfield Union v. Green, 1 H. & W. at p. 18 per Parke, B.
N. 884; S. C. 26 L J. (Ex.) 140. 2 Chartd. Merc. Bk. v. Dickson, ^ Brown v. M'Dermot, 5 Esp. L. R. 3 P. C. 574.
265; see also Burton v. Jones, I 3 Camidge v. Allenby, 6 B. & M. & Gr. 83. C. 373; S. C. 9 D. & Ry. 391 ;
the person entitled to present, or the holder, to seek out the representative of a dead person, but the English rule is that such should be done ;? but if a particular place is specified, presentment there is sufficient.?
To his Assignee-Here again, the rule of English Law differs; under it the presentment must be to the bankrupt, the reason given by Lord Mansfield was “because many means may remain of “ obtaining payment, by the assistance of friends or otherwise”3 and Eyre, C. J., said, “ It seems harsh that a known bankruptcy “should not be equivalent to a demand or notice, but the rule " is too strong to be dispensed with”4
76. No presentment for payment is necessary, When presentand the instrument is dishonored at the due date for presentment, in any of the following cases :
(a) if the maker, drawee or acceptor intentionally prevents the presentment of the instrument, or,
if the instrument being payable at his place of business, he closes such place on a business day during the usual business hours, or
if the instrument being payable at some other specified place, neither he nor any person authorized to pay it attends at such place during the usual business hours, or
if the instrument not being payable at any specified place, he cannot after due search be found;
(6) as against any party sought to be charged therewith, if he has engaged to pay notwithstanding non-presentment;
(c) as against any party if, after maturity, with knowledge that the instrument has not been presented
· Caunt v. Thompson, 7 C. B. 400; S. C. 18 L. J. (C. P.) 125.
• Philpot v. Bryant, 4 Bing. 717 ; S. C.
C. & P. 244.
at p. 515; see also Warrington v.
4 Nicholson v. Gouthit, 2 H.