(Opinion of Counsel.)

The question as to the time during the day of maturity when a bill must be presented for payment does not appear to have come up for decision in Ontario.

The cases in England on the subject are all old ones. The section of the English Bills of Exchange Act now sets the question at rest there, as it declares that presentment must be made "at a reasonable hour on a business day" at a proper place, etc. The corresponding section of the Canadian Bills of Exchange Act is as follows:

"86. When the bill is not payable on demand (presentment must be made) on the day it falls due.

"87. Presentment must be made by the holder or by some person authorized to receive payment on his behalf, at the proper place, as hereinafter defined and either to the person designated by the bill as payer, or to his representative or some person authorized to pay or refuse payment on his behalf, if, with the exercise of reasonable diligence, such person can there be found."

The section relating to the presentment for acceptance is as follows:

"78 ,(a). The presentment must be made by or on be-half of the holder to the drawee or to some person authorized to accept or refuse acceptance on his behalf, at a reasonable hour on a business day, and before the bill is overdue."

It will be observed that this section contains the words at a reasonable hour on a business day." The absence of these words in section 86, and the statement in that section that presentment for payment must be made on the day the bill falls due, leaves the question open for argument - the argument being that, as nothing is said as to the time of the day for presentation for payment, the holder has the whole day for presentment.

We think, however, that inasmuch as section 87 requires presentment to be made at the proper place either to the person designated by the bill as payer, or some person authorized to pay or refuse payment on his behalf, if with the exercise of reasonable diligence such person could there be found, presentment for payment must be made at a reasonable hour, otherwise it could not be said that reasonable diligence had been exercised to find the proper person at the proper place to whom the bill could be presented.

In Parker v. Gordon, 7 East, 385 (A.D.) 1806, Lord Ellenborough said:

"If a party choose to take an acceptance payable at an appointed place, it is to be presumed that he will inform himself of the proper time for receiving payment at such place, and he must apply accordingly."

In this case the bill was made payable at a banker's, and it was not presented until after six o'clock p.m., when the bank was shut and the clerks gone away.

In the same case LeBlanc, J., said:

"If a party will take an acceptance in this manner, payable at a banker's, he must present it at a proper time, according to the known method of conducting business, otherwise the greatest inconvenience would ensue."

A new York case, Utica v. Smith, 18 Johns, N.Y. 230, is instructive. In that case a note was payable at the Mechanics' Bank, New York City, and was presented at 3.15 p.m. The bank closed at three o'clock, but it was customary for clerks to remain after that hour during which notes were presented and paid or refused. The court said, "though the presentment was out of banking hours, it is sufficient if there was a person at the bank authorized to give the holder an answer."

The result of a number of American cases is given in the American and English Encyclopaedia of Laws, 2nd edition, vol. IV., page 370, as follows:

"Where a bill or note is payable at a bank, it must be presented for payment before the usual hour of closing the banking house."

We think these authorities would be followed in Canada.

Section 10 of the Hills of Exchange Act declares that the rules of the common law of England, including the Law Mer-i ham, save in so far as they are inconsistent with the express provisions of the said Act, as amended, shall apply.

The English cases referred to show what the rule of the common law of England on the subject was, and we think it cannot be said that such- rule is inconsistent with the express provisions of the Act. On the contrary, we think it consistent with it.

Note. - In Quebec it has been held that presentation at the closed doors of a bank after its usual office hours was not sufficient upon which to base a protest: Waiters v. Ruffen-stein (1866), 16 L. C. R. 207.

The English rule has been stated as follows: "If a bill be payable at a bank it must be presented within banking hours; if at a merchant's place of business then within ordinary business hours; if at a private house presentation up to bed-tune would be sufficient return by Collecting Rani of Unpaid Bill, After maturity, is Notice to the swing BanK that it has been Dishonoured.

Question 304. - Accepted draft made by A to his own order, endorsed in blank, handed to B, who endorses over to S bank, who forwarded it to' bank B without instructions.

Was unpaid on due dete and returned to S bank the same day. Bank S refuses to take it back, saying the endorsers are released because the item was not protested. As this was neither a foreign nor Quebec bill, it having been accepted payable in another Province, bank R claims that all bank S needed to have done to hold the endorsers was to have notified them on recipt of the item, and, in fact, should have done this, as the mere fact of the bill being returned without being marked "protested" would show them it had been neglected.

Answer. - Bank R is right. See sections 99 and 100 Bills of Exchange Act.