tiff. The defence does not admit (and therefore denies) this. The bill is produced and is proved by plaintiff to have been discounted with the Merchants' Bank and specially endorsed to the bank by D. Edgar & Co., and there is no endorsement by the bark. The signature of D. Edgar & Co. on the endorsement is struck out. Plaintiff says he did it by mistake (or rather not knowing its effect) after he took it up at maturity, to prevent its re-issue. If the bank are holders they should be parties. If the firm of D. Edgar & Co. are holders then the individual partners should endorse, as the right of action on the bill cannot pass by separate assignment.

At the trial plaintiff's counsel applied for leave to add the bank, if necessary, and also for leave to strike out the special indorsement, which was opposed on the ground that it is only after a blank endorsement the holder can strike out; and also for leave for plaintiff to endorse in D. Edgar & Co.'s name to plaintiff; but the Judge pointed out that the insolvency of Tarbox worked a dissolution, and after dissolution each partner must endorse.

Then, as to the Statute of Limitations, the bill fell due 1st December, 1875; the writ issued 1st December, 1881. If the bank are holders and added now, it is too late.

He referred to Chalmers on Bills of Exchange, 106, 107; Cuvillier v. Fraser, 5 U. C. R. 152.

J. K. Kerr, Q. C., contra. As to the Statute of Limitations, the writ is issued in time under Freeman v. Reed, 4 B. & S. 174; Garden v. Breese, L. R. 3 C. P. 300.

Then, as to the objection to the endorsement, the bank has stamped above the signature "D. Edgar & Co." the usual special words, "pay the Merchants' Bank of Canada." It is proved that was done without the knowledge of the firm, and that on payment the bank handed the firm the bill just as it was. Then, the endorsement, "D. Edgar & Co.," is cancelled. This, however, was proved to have been done simply to guard against loss of the bill, and claim by a holder. At the trial leave was asked to strike out the special endorsement, as the holder had the right to

do, and for leave to have the bill properly endorsed, if required.

The equitable title of the plaintiff was also relied on by virtue of the assignment from the assignee of one partner, and from the other partner personally, of all the assets of all the firm to the plaintiff. This gave him the right to call upon all necessary parties to endorse, and thus establish a good equitable right to sue.

June 24, 1882. CAMERON, J.-The defendant's counsel has placed his defence on three grounds: first, that the bill produced does not support the statement of claim, as the bill was not endorsed by D. Edgar & Co. to the plaintiff, and appears to have been specially endorsed to the Merchants Bank, and was not endorsed by the bank; secondly, that the plaintiff's claim is barred by the Statute of Limitations, as an action might have been brought upon it on the 1st day of December, 1875, after the closing of the bank on that day, and so six years had expired on the night of the 30th November, 1881, and the claim was barred on the 1st December, 1881, when the suit was commenced; and lastly, that by the dealings between the plaintiff's firm and John J. Magee, the firm's principal debtor, the defendant was discharged from liability.

I will deal with the last ground first. [The learned Judge here reviewed the evidence at length, which was contradictory, and which it is thought unnecessary to set out here.]

I am, therefore, of opinion the defendant has established his defence as set forth in the fourth paragraph of his statement of defence, being the agreement by D. Edgar & Co. with John J. Magee for the extension of the time for payment of the bill, the amount of the defendant's bill being included either in the $750 note or the $1,050.50 note; and whichever way it was there was an extension of time to John J. Magee beyond the maturity of the bill, without the knowledge or consent of the plaintiff.

As to the objection to the plaintiff's recovery on the ground that the claim was barred by the Statute of Limitations, it is necessary to determine when the plaintiff's cause of action arose. The bill by its terms was payable two months after date; it was dated the 28th September, 1875, and so by force of its own terms it was payable on the 28th November, 1875. By operation of the law relating to bills of exchange and promissory notes the time for payment was extended for three days. The third day of grace was the 1st December, 1875, and no right to sue the bill-that is no cause of action-arose until the last moment of that day. A suit therefore commenced, as this was, on the 1st December, 1881, would be commenced within six years, as there was no cause of action till the 2nd December, 1875.

upon

But the difficulty in the present case is caused by the Act, ch. 42, Con. Stat. U. C., by sec. 15 whereof it is enacted "all protests of inland or foreign bills of exchange or promissory notes, for dishonour, either by non-acceptance or non-payment, may be made on the day of such dishonour, at any time after non-acceptance, or, in case of non-payment, at any time after the hour of three o'clock in the afternoon;" and in Sinclair v. Robson, 16 U. C. R. 211, this Court held, under this provision, the maker of a promissory note could be arrested after three o'clock on the last day of grace; thus laying down the law in effect to be that the cause of action on the note was complete before the expiration of the day of maturity. Robinson, C. J., expressed an opinion that independently of the statute, the plaintiff was entitled to sue out process when he did that was at five o'clock in the afternoon of the last day of grace; and this after consideration of the cases Leftley v. Mills, 4 T. R. 170, and Wells v. Giles, 2 Gale 209, the latter of which he distinguished, as being a decision in respect of a bill of exchange, and governed by 9 & 10 Wm. 3, ch. 17, under which the cause of action or right to sue was not complete till after the expiration of the third day of grace. McLean, J., in the same case,

:

said: "If a note is payable on a particular day at a bank, it must be paid before three o'clock, or it becomes dishonoured, and may be protested immediately after that hour. If payable before or at three o'clock, it must be due at that time, and any note which is overdue may be sued."

In Leftley v. Mills, referred to in the judgment of the Chief Justice, Lord Kenyon expressed the opinion that an acceptor of a bill of exchange had until the last moment of the day of grace to pay the bill, and was not chargeable with the expenses of noting for protest where he paid after such noting. He said: "The ques-tion here is, on what day and at what time the defendant was bound to pay this bill. According to the nature of the contract the acceptance was an undertaking to pay the bill on the last of the three days of grace. Now, unless there be something in this case to distinguish it from other contracts, it must be governed by the same rules. In the case of mortgages, bonds, and a variety of other instruments, whereby parties oblige themselves to the performance of certain duties, as to pay money within a certain time, we find the rule to be, without any exception, that the party bound has till the last moment of the day to deliver himself from the obligation by paying." Buller, J., while concurring in the result, that the action did not lie in that particular case, added: "I cannot refrain from expressing my dissent from what has fallen from my Lord respecting the time when the payment of bills of exchange may be enforced. The rule as to the time of paying rent or any of the other cases mentioned by my Lord cannot I think apply to this case.. But one of the plaintiffs' counsel has correctly stated the nature of the acceptor's undertaking, which is, to pay the bill on demand on any part of the third day of grace; and the rule is now so well established that it will be extremely dangerous to depart from it. With regard to foreign bills of exchange, all the books agree that the protest must be made on the last day of grace. Now, that supposes a default in the payment, for a protest cannot.

exist unless default be made. But if the party has until the last moment of the day to pay the bill, the protest cannot be made on that day. Therefore, the usage on bills of exchange is established. They are payable at any time on the last day of grace on demand, provided that demand be made within reasonable hours."

It seems to me that the language of both Judges will, read in connection with ch. 42 Con. Stat. U. C., sustain the judgment of this Court in Sinclair v. Robson; and while that judgment is not on the very point now in question, it is not in principle distinguishable, and should govern our decision. The bill in question is in terms payable at a bank, if that would make any difference, but I think it would not, as the statute permits the protesting of any bill after three o'clock on the last day of grace. The defendant is therefore entitled to succeed also on the paragraph of his statement of defence as to the Statute of Limitations.

The remaining objection to the plaintiff's right of recovery, namely, that the bill was not in fact endorsed to the plaintiff, is technically correct, but it was not raised in pleading, and if it had been, the plaintiff had a right in equity to sue on the bill, as one of the payees, having acquired the interest of his co-partners, the other payees, in the bill. In stating that the defence was not raised in pleading, I do not wish to be understood as determining that this is or is not a case in which the plaintiff was bound to prove, though not denied, the allegation that the bill was endorsed to him. Under the circumstances the objection is technical and one of form, and the plaintiff should be allowed to make any amendments necessary to remove the objection, but as on the merits the defendant is entitled to succeed, it is not of any importance.

HAGARTY, C. J.-The first question to be disposed of is that of the Statute of Limitations. The bill fell due on December 1st; it was payable at the Merchants Bank; the defendant is the acceptor, and did not pay. It was not protested.