Ifegotiable Instrument - Presentment - Promissory note pa.yable at a
particular place - Whether presentment necessar,{ to char~ maker
Indorsed with guarantee "without referring to the maker" - Whether
 constitutes express waiver of presentment by guarantor.

1. Where a promissory note Hhich stipulated for peyrnent at a
   particular place was not presented for peyrnent at the stipulated
   place the maker is not liable thereon.
2. A guarantor stands on the same footing as the maker, whose
   obligation he has guaranteed so far as presentation for p~ment
   is concerned. If presentment to the maker vias not necessary to
   render him liable, then it is not necessary to make the.guarantor
   liable unless ll1 his capacity as surety he has been dc~ified

by the non-presentment. If precentment to the maker is necessary
to render the maker liable, then unless the guarantor has expressly
or impliedly ~1D.ived such presentment, it is as necessary to' render
the euarantor liable as it is to the maker.

1. In this case, e.l though presentment Has therefore necessary to
   oh:;>,rce the gu:::,r2 . .ntor, such requirement had been expressly l1ai ved
   by the gu2.!'C1.ntor by his. Lndcr-semerrt g'Uc,I'enteeing payment "without
   reference to the maker."

Bills of Exchange Ordinance 1917, s.90(1).

Appeal •

. ~111y "t'\,:, t-'j.,1u, Benn&it. :C.j~"I This is an appeal from the decree of the
High Court, Khar-uoum , dated June 3, 1944, dismissing a suit by the plaintiff
cl"ailililli!, LZ.55 from the first defendant, as the maker, and from the second

* Court: Bennett, C.J., S~mpson, D.J. and lwlavrogordato, D.J.

defendant, as the guarantor, of a promissory note dated M~ 25, 1942,
p~able to the order of Mustafa Osman and endorsed by him to the plaintiff.
The learned judge found in favour of both the defendants on the ground

that the said promissory note was not presented for p~ent. The plaintiff
has appealed against that deoision, first on the ground that he in faot
proved presentment and the deoision to the contrary is against the weight

of the evidence, and second, on the ground that no presentment was necessary
to charge either defendant. In relation to'the first grounft of appeal,

the plaurliff, in the alternative, applied for leave to call fresh evidence •

The relevant portions of the promissory note read as follows:

"On tb: 3ht r.l~, 1942, I promise to p~ to Mustafa srr, Osman,
the Contractor, or to his order the above-mentioned sum, of LE.55
value received in cash, p~ent and action if any at Khartoum •••

(Sgd) Abdel Aziz Warman

"I hereby guarantee the payment of the above sum. on the date of
maturity or after the date of maturity without referring to the maker.
Thr:! creditor has the right to claim the amount from me without going
to the maker or he m~ claim it from both of us.

(Sgd) Hassan Abu Gabal"

Section 90, sub-section (1) of the Bills of Exchange Ordinance 1917,
provides as follows:

"Where a promissory note in the body of it made payable at a
particular place, it shall be presented for p~ment at·that place

in order to render the maker liable. In any other case, presentment
for p~ent is not necessary in order to render the maker liable."

The learned High Court Judge found as a fact that the plaintiff did

not present the promissory note to the first defendant, the maker thereof,
and I see no sufficient reason to differ from his finding. The promissory
note in the body thereof .•. tas made payabl.e at a partiOlllar place, namely
Khartoum, and, that being so, I do no~ see how the express and obligatory
terms of section 90(1) can be avoided. That sub-seotion says that in such
a case the promissory note shall be presented for payment at the stipulated

place in order to render tb~ mc>.lcer lia.ble. It .•. Ias not, and could not

have been argued that the first def~r.dant had either expressly or

impliedly \~ai ved the presentment. So far as the first def'endarrt is
concerned, therefore, I am of opinion th£.t this appeal Elhould be dismissed.

So far as presentr.1"lnt for ;_:.aymel1t is concerned , a guarantor stands
upon the same footbg as the i7'i~8r "hose obligation he has guaranteed.

If presentment to the maker is 110t necessary to render him lia.ble, then,
it is not necessary to mak8 the guarantor liable unlecs in his capacity

as surety he has bean damnified by the non-presentment. If presentment

to the maker is necessary to render the maker liable, then, urn ess the
guarantor has expressly or impliedly ,{laived such presentoent, it is as
necessary to render the guarantor liable as it is the maker •.. Apart ,from
waiv.er,. therefore, presentment to the maker Has as necessary in this case
to render the guarantor, the second def'endant , liable as it '.las tl1.e

first defendant. \'ias thcI'€ a. via.iver by the second defendant? In lliY
opinion the guarantee of p~cnt on or after the date of maturity, without
reference to the maker, constituted an expzesa \'Jaiver of presentoent for
payment to the maker. I do not think tha.t the words n\·:ithou.t reference

to the maker" can be given any .other mean'ing , I think the:r.·efore that as
again~ the second defendant the appeal must be allowed, 0nd judgment

entered for the plaint iff age.inGt the second respondent i'or the 'su:n of LE.55.

In regard to oosts I thL~k that the plaintiff must pay the costs of
the first defendant both here and below but that the second defendant must
pay the plaintiff's costs both here and be Low including the costs ordered
to be paid by the plaintiff to the first defende.nt.

Simpson, D.J.:I concur.

Mavrogordato, D.J.:Iooncur.

Appeal dismissed as to
first defendMt allo\1ed
as to second defendant.