in a reasonable time,—that is, a period reasonable with reference to the Sec. 85. circumstances connected with each particular case. But that where a note dated the 16th of February, 1864, and indorsed, though made payable on demand, but the payment of which was not contemplated by the makers at any immediate or specific date, and it appearing that the note was meant to be, to a greater or less extent, a continuing security, the presentment on the 14th December, 1864, was not unreasonable, and the holders of the note were entitled to recover. 3 A common promissory note payable on demand differs from a bill payable on demand, or a cheque, in this respect the bill and cheque are evidently intended to be presented and paid immediately, and the drawer may have good reason for desiring to withdraw his funds from the drawee without delay. But a common promissory note payable on demand, is very often originally intended as a continuing security, and may be afterwards indorsed as such. Indeed, it is not uncommon for the payee, and afterwards the indorsee, to receive from the maker, interest periodically for many years on such a note. And sometimes the note is expressly made payable with interest, which clearly indicates the intention of the parties to be that, though the holder may demand payment immediately, yet he is not bound to do so. It is therefore conceived that a common promissory note, payable on demand, especially if made payable with interest, is not necessarily to be presented the next day after it has been received, in order to charge the indorser ; and that when the indorser defends himself on the ground of delay in presenting the note, it will be a question for the Judge or the jury, whether under all the circumstances, the delay of presentment was, or was not, unreasonable: Byles on Bills, 164. See notes to ss. 40, 45, and 73. This clause is in harmony with the rule that a reasonable time for the presentment of a note for payment, should receive a more liberal construction than in the case of bills, or cheques. It varies in respect of notes payable on demand, the provisions of sub-ss. 2 and 3, of s. 36; and is in harmony with the decision of Brooks v. Mitchell, 9 M. & W. 15, where the promissory note payable on demand, was indorsed some years after its date, and no interest had been paid on it for several years before its indorsement to the holder, who sued upon it; and it was held not to be overdue. But if there is evidence on the face of the note that it is overdue, as where it has been noted for protest, or where it has other apparent indications, the holder's title is subject to the rules applicable to overdue bills. See notes to s. 36; and as to "defects of title," notes to s. 29. for payment the place named. 86. Where a promissory note is in the body of it made Presentment payable at a particular place, it must be presented for pay- at ment at that place. 1 But the maker is not discharged by the omission to present the note for payment on the day Imp. Act,s.87 Ind.Act, 8.64 Sec. 86. that it matures. 2 But if any suit or action is instituted thereon against him before presentation, the costs thereof shall be in the discretion of the Court. 3 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: 4 Liability of indorser. What presentment 2. Presentment for payment is necessary in order to render the indorser of a note liable: 5 3. Where a note is in the body of it made payable at a will suffice. 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. 6 66 1 The former law (R. S. C. c. 123 ss. 9 and 16) provided that in Ontario and Prince Edward Island, unless the bill or note expressed on its face that it was payable at a particular place only and not otherwise or elsewhere," it was payable generally. And under that law, following the interpretation given to a general promise in a note, it was held to be sufficient if presentment were made either at the place named, or to the maker himself: Commercial Bank v. Johnston, 2 U. C. Q. B. 126. The English law did not, as did the Canadian law, place promissory notes under the same rule as to the effect of the words "only and not elsewhere;" and the English Courts have held that if a place of payment be specified in the body of a note, presentment for payment must be made there: Vander Donckt v. Thellusson, 8 C. B. 812. The old rule as to the effect of a general promise, seems, by this Act, to have been abrogated in Ontario and Prince Edward Island, and a stricter rule prescribed; so that where the note is made payable at a particular place, it becomes part of the contract; and the note must be presented for payment at such place, in order to charge the maker and indorsers: Sanderson v. Bowes, 14 East 500. The above clause may be construed according to the following rules: A note payable at a particular place, must be presented there for payment. As against an indorser it must be presented strictly according to its exigency, on the day it matures. As against the maker any subsequent presentment will suffice, unless the maker has suffered loss or damage by the delay: Biggs v. Wood, 2 Man. R. 272. In the English Act the remainder of the sentence reads: "in order to render the maker liable." 2 This provision as to delay in presenting a note for payment is in Sec. 86. harmony with the rule prescribed by s. 52, sub-s. 2, which provides that the omission to present a bill of exchange to the acceptor "on the day it matures," will not discharge such acceptor. The clause evidently refers to a note payable “at a fixed or determinable future time" after its date, and one on which there are no indorsers, although the clause contains no reference to them. Where there are indorsers, the note must be presented strictly according to its exigencies. There is no provision, as in the case of a note payable on demand, that presentment for payment of a time note must be made "within a reasonable time;" but such a condition may reasonably be inferred. The omission to present a note for payment on the day it matures would, as in the case of the non-presentment of a bill, discharge the indorsers. See note 2 to s. 53. 3 This is similar to the provision in s. 52, sub-s. 2. The defendant in an action on a note payable on demand, but of which no demand has been made, deposited the amount of the note in Court without costs, and then demurred to the action on the ground of want of presentment. The demurrer was dismissed; but on the merits it was held that as no demand had been made, the defendant was not in default at the time of action brought, and the plaintiff should therefore pay his costs: Archer v. Lortie, 3 Q. L. R. 159. This is also similar to the provision in s. 52 as to the acceptors of bills; and it is consistent with the rule of the common law that the debtor should seek out his creditor to pay him: Walton v. Mascall, 13 M. & W. 458. 5 This clause makes applicable to the case of a promissory note, payable on demand, or at a fixed date, and the liability of the indorsers of such note, some of the rules prescribed by s. 45 as to the presentment of bills of exchange for payment. Where such notes are payable at a particular place, presentment for payment must be made there; but if no place be specified, then presentment must be made to the maker, according to the rules prescribed by s. 45, (so far as applicable), and this section. It is not expressly stated, but it may be inferred, that the clauses in section 45, providing for presentment through or at the post office, apply to promissory notes. But where there are no indorsers, it is not necessary to present a promissory note for payment "on the day it matures," in order to hold the maker liable. See the next note. 6 A stipulation indorsed on the bill or note is not to be taken as part of the instrument so as to make it conditional, but as a marking for identification: Brill v. Cock, 1 M. & W. 232. But if an indorsement of a condition on a note is made before the note is signed, it is part of such note. If made after the signing, it will be merely as a memorandum to identify the note: McKinnon v. Campbell, 6 U. C. L. J. 58. It would perplex commercial transactions if paper securities, like bills and notes, were issued into the world incumbered with conditions and contingencies, and if the Sec. 86. person to whom they were offered in negotiation, were obliged to inquire when these uncertain events would probably be reduced to a certainty: Per Lord Kenyon, C.J., in Carlos v. Fancourt, 5 T. R. 482. The latter words of the clause are not in the English Act. By s. 88, the provisions of the Act is relating to bills of exchange, are, subject to the provisions in this part of the Act, made applicable to promissory notes; and as this clause prescribes the procedure as to the presentment of notes, it must be held to vary so much of the procedure prescribed by s. 45, as to presentment of bills, as may be in conflict with it. The clause, if read according to the punctuation, may be construed as authorizing presentment according to the effect stated in the bill, i. e., at the place indicated in the body of the bill; or if there be no place so specified, then either (a) at the place indicated in the memorandum; or (b) to the maker elsewhere. But if the clause is read without punctuation, it may be construed as authorizing presentment in any one of three ways: (1) at the place indicated (a) in the body of the bill, or (b) in the memorandum; or (2) to the maker elsewhere. In the Rolls of Parliament the sentences of the statutes are never punctuated Barrow v. Wadkin, 24 Beav. 330. When the meaning of a clause is doubtful, the Court may insert punctuation to show of what construction the words are capable; and if by such aid, the Court is enabled to see that the language can bear an interpretation which is rational and self-consistent, it is bound to adopt that interpretation: Re Denney's Estate, 8 Ir. Eq. 447. Punctuation is a most fallible standard by which to interpret a writing. The Court will first take the instrument by its four corners in order to ascertain its true meaning. If that is apparent, on judicially inspecting it, the punctuation will not be suffered to change it: Ewing v. Burnett, 11 Peters (U. S.) 41. Contract of ILLUSTRATIONS. A note in the following form: "Three months after date, I promise to pay to my own order the sum of £65-J. A. B." Payable at Messrs. W. & P.'s," and indorsed; is not a note payable at a particular place. The words "payable at Messrs. W. & P.'s," written beneath the body of the note, constitute a memorandum only: Masters v. Baretto, 8 C. B. 433. A memorandum put by an indorser at the foot of a promissory note without the maker's authority, declaring it to be payable at a particular place, does not effect the maker's liability, as it forms no part of his contract: Cunard v. Tozer, 2 Kerr, N. B. 365. A stipulation indorsed on a note by the payee, is not to be taken as a part of that instrument, without evidence that it was written at the time the note was made: Stone v. Metcalf, 4 Camp. 217. 87. The maker of a promissory note, by making it— (a) Engages that he will pay it according to its tenor r; (b) Is precluded from denying to a holder in due course the existence of the payee and his then capacity to indorse. 1 1 This is similar to the second part of the contract of the drawer of a Sec. 87. bill of exchange. Before the maker pays any note he should be entirely satisfied that the signature of the payee, or other indorser under whom the actual holder claims, is a genuine and not a forged signature; for if it be a forgery, then the payment to the holder will be a mere nullity. The maker by the payment of the note does not positively affirm the genuineness of the signature of the payee, or of any subsequent indorser (as the acceptor does the signature of the drawer of the bill by accepting it); for he is not presumed to know them; and if he pays the note under the supposition that the signatures are genuine, and they are not so, he pays under a mistake of fact: Story on Promissory Notes, s. 379. The maker of a note is primarily liable on it, and in this way stands in the same position as the acceptor of a bill. By making a note, the maker intimates to all parties that he considers the payee capable of making an order sufficient to transfer the property in the note. It is a general principle, applicable to all negotiable securities, that a person shall not dispute the power of another to indorse such an instrument, especially when he asserts, by the instrument which he issues to the world, that the other has such power: Drayton v. Dale, 2 B. & C. 299. of part II to 88. Subject to the provisions in this part, and except as Application by this section provided, the provisions of this Act relating notes. to bills of exchange apply, with the necessary modifications, to promissory notes : 1 Imp. Act,s. 89 ing terms. 2. In applying those provisions the maker of a note shall Correspondbe deemed to correspond with the acceptor of a bill, and the first indorser of a note shall be deemed to correspond with the drawer of an accepted bill payable to drawer's order: 2 3. The following provisions as to bills do not apply to What provi notes, namely, provisions relating to— (a.) Presentment for acceptance; (b.) Acceptance; (c.) Acceptance supra protest; (d.) Bills in a set: 3 sions do not apply note. 4. Where a foreign note is dishonored, protest thereof is As to foreign unnecessary except for the preservation of the liabilities of indorsers.4 1 The " necessary modifications" to the provisions of the Act respecting Bills of Exchange are suggested in general terms in the notes to the several sections 82-88 relating to promissory notes. |