049-NLR-NLR-V-10-KARUPPEN-CHETTY-v.-PALANIAPPA-CHETTY.pdf
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1<)07.-June 10
Present: Mr. Justice Wood Renton.
KARUPPEN CHETTY u. PALANIAPPA CHETTY.
C. R., Colombo, 2,086.
*Promissoty note—Bills of Exchange Actf $. 87 (1)—Presentment forpayment necessary—Non-prcsentmeni—Excuse.
Under section 87, sub-section (1), a note, which by its kown termsis payable at a particular place, must be presented at such placefor payment, unless there is some excuse for not doing so; andwhere a note is not so presented, the maker is not liable thereon.
T
HE plaintiff sued the defendant on a promissory note made■by him in favour of Messrs. Carson & Co._ who endorsed the
note to the plaintiff. The note was made payable at the office ofMessrs. Carson & Co.; but the note on the due date was at theNational Bank, where it had been discounted by Messrs. Carson& Oo. The defendant pleaded want of due presentment. TheCommissioner (J. S. Drieberg, Esq.j gave judgment for the plaintiff,holding that the reason for the non-presentment at Messrs. Car6on& Co.'s office was the fact that the defendant was not there on theday of payment.
The defendant appealed.
Wadsworth, for the defendant, appellant.
Fan Langenberg, for the plaintiff, respondent.
10th June, 1907. Wood Renton J.—
In my opinion this appeal should be allowed. The appellantwas sued in the Court of Requests, Colombo, as the maker of apromissory note in favour of Messrs. Carson & Co. It was a notewhich by its own terms‘was made specially payable at the offices ofthe payees, and it was therefore their duty, in virtue' of. section87, sub-section (1), of the ©ills of Exchange Act of 1882, to presentit for payment at the place named in the body of the note, unlessthere was some excuse for not doing so within the meaning ofsection 46 of the Act of 1882. In the present case what, took placewas that the payees discounted the note with the National 'Bank ofIndia, and it has been held by the learned Judge on the facts* thatthere nevef was any presentment or demand for payment at theoffice of Messrs. Carson & Co. at all. It has- further been held bythe Judge that the reason for this non-presentment must be takento be a fact that* the defendant-appellant was not there on the day
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of the payment, and on that ground he has decided this issue infavour of the respondent. So far as I can discover from the recordthere is no evidence that the defendant-appellant was not atMessrs. Carson & Co.’s offices on the day in question, and in anyevent it was the duty of the respondent to prove that the notewas in fact presented for payment according to its tenor. It is notsuggested by Mr. Waldock, a partner in Messrs. Carson & Co.'s orby their broker, in their evidence, that there was any such defaulton the part of the appellant. On the other hand, they allege whatI must suppose to be a mercantile usage among Chetties to meetsuch notes by payment at the Bank and not at the places namedin the body of the notes themselves. But the evidence falls far shortof establishing any usage of this description, and it appears to methat the appeal should be allowed. In the course of Mr. VanLangenberg’s argument, I was inclined to think that the case oughtto be sent back for the framing of a new issue, which would determinethe question whether there was any excuse for non-presentmentunder section 46 of the Act of 1882. But, on re-consideration, Ithink the parties should be held to the issues which they haveframed or accepted, and I therefore allow this appeal with costs.It may perhaps be desirable that I should give a reference to thecases which have been cited in the argument in support of theconstruction I have placed on section 87 of the Act of 1882. Theyare as follows- .Sanderson v. Bowes;1 Spmdier et al. v. Grellett;2Kanther Ponnavnbalam v. Ghinnatamby Kurunather.*
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Appeal allowed: action dismissed.
2 (1847) 1 Exeh. 384.* (1884) 6 8. C. C. 8.
1907*
June 10*
WoodRenton J.
1 (1811) 14 East 500.