S. 66. pay if the original drawee, upon a presentment to him for payment, should persist in dishonouring the bill, and such dishonour by him should be notified by protest to the person who has accepted for honour.1 S. 67. Presentment honour. d Toward those to whom he is liable under this subsection, he apparently is under the same estoppels as the party for whose honour he has accepted, and is also estopped from denying the genuineness and validity of the signature of that party.2 67. (1.) Where a dishonoured bill has been accepted for honour supra protest, or contains a a to acceptor for reference in case of need, it must be protested for non-payment before it is presented for payment to the acceptor for honour, or referee in case of need." (2.) Where the address of the acceptor for honour is in the same place where the bill is protested for non-payment, the bill must be presented to him not later than the day following its maturity; and where the address of the acceptor for honour is in some place other than the place where it was protested for non-payment, the bill must be forwarded not later than the day following its maturity for presentment to him.c (3.) Delay in presentment or non-presentment is excused by any circumstance which would excuse delay in presentment for payment or non-presentment for payment.d (4.) When a bill of exchange is dishonoured by the acceptor for honour it must be protested for non-payment by him. a See s. 15. e 1 Hoare v. Cazenove, 1812, 16 East, 391, per Ellenborough, C.J., 394, 2 See Phillips v. Im Thurn, 1866, L.R. 1 C.P. 463; ss. 54 and 55. b Under this sub-section and sub-section (1) of section S. 67. 66, the bill must have been duly presented, dishonoured, and protested.1 The principle of these provisions is, that "whatever is requisite to enable a person who has accepted a bill for the honour of another, to call upon that person to repay him, and to enable him to recover over against such person, may also be reasonably held necessary to enable another party to recover against such an acceptor for honour." 2 If notice of dishonour by non-acceptance has previously been given, notice of dishonour by non-payment is not necessary to preserve recourse, unless the bill has in the meantime been accepted.3 4 c Non-business days are excluded. For the other conditions of due presentment see section 45. The Act does not in terms prescribe the consequence of neglect to present in due time to the acceptor for honour, but as presentment is a condition of the obligation, it is to be inferred that the acceptor for honour and every one who would have been discharged on payment by him, will be discharged. d See s. 46. e This provision applies to inland bills notwithstanding section 51 (2), but subject to section (93). a Payment for 68. (1.) Where a bill has been protested for non- S. 68. payment, any person may intervene and pay it supra protest for the honour of any party liable thereon, or honour supra for the honour of the person for whose account the bill is drawn. (2.) Where two or more persons offer to pay a bill for the honour of different parties, the person whose payment will discharge most parties to the bill shall have the preference. (3.) Payment for honour supra protest, in order protest. S. 68. to operate as such and not as a mere voluntary payment, must be attested by a notarial act of honour, which may be appended to the protest or form an extension of it.c (4.) The notarial act of honour must be founded on a declaration made by the payer for honour, or his agent in that behalf, declaring his intention to pay the bill for honour, and for whose honour he pays. (5,) Where a bill has been paid for honour, all parties subsequent to the party for whose honour it is paid are discharged, but the payer for honour is subrogated for, and succeeds to both the rights and duties of, the holder as regards the party for whose honour he pays, and all parties liable to that party.d (6.) The payer for honour on paying to the holder the amount of the bill and the notarial expenses incidental to its dishonoure is entitled to receive both the bill itself and the protest. If the holder do not on demand deliver them up he shall be liable to the payer for honour in damages. (7.) Where the holder of a bill refuses to receive payment supra protest he shall lose his right of recourse against any party who would have been discharged by such payment. a See ss. 51 (4, 6-9) and 93. b A person liable on a bill may pay for the honour of another party.1 The consent of the holder is not required as in the case of acceptance for honour.2 c See form of act of honour at p. 281. d A person paying for the drawer's honour, if he has received the bill from a holder to whom the acceptor is liable, may recover from the acceptor, though the latter has accepted 1 1 Bell's Com. 448; Thomson, 326; cf. s. 65 (1). 2 Cf. s. 65 (1) and sub-sec. (7), infra for the drawer's accommodation.1 But the payer of a bill for S. 68. honour cannot indorse it.2 His duty apparently is to give notice of dishonour to the person for whose honour he has paid, and, if necessary,3 to the parties liable to that person, within a reasonable time.4 e See s. 57 (1, c.) Lost Instruments. S. 69. Holder's right of lost bill. 69. Where a bill has been lost a before it is overdue, the person who was the holder of it may apply to the drawer to give him another bill of the same to duplicate tenor, giving security to the drawer if required to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again. с If the drawer on request as aforesaid refuses to give such duplicate bill, he may be compelled to do so. a Or accidentally destroyed.5 b It is competent in Scotland, when a bill is lost either before or after maturity, for any person in right of it, for example, an acceptor who has paid the bill, but requires it as a voucher of the payment, to bring an action of proving the tenor before the Court of Session, in which he must prove (1) the facts relating to the loss of the instrument, and (2) its terms." It is competent to prove the tenor of the bill as it was when lost, with the acceptance and indorsements, if any. But as a bill of exchange may be discharged by delivery to the obligant, the casus amissionis has to be very clearly made out. The holder can only enforce the new bill 1 Overend, Gurney, and Co., 1868, L.R. 6, Eq. 344. (h). 2 Ibid. 367; Byles, 310 (s). 3 See ss. 67, n.b; 48 (2). 4 See s. 49 (12); Thomson, 321. 5 See Thomson, 204; Byles, 395 6 Thomson, 204-5. 7 M'Farlane v. M'Nee, 1826, 4 S. 509, (n.e. 517); Carson v. M'Micken, May 14, 1811, F.C.; Campbell v. York Buildings Co.'s Crs., 1780, M. 15,828; Mackay's Manual of Practice, 514. S. 69. subject to the condition of finding caution to indemnify the person paying it against claims on the original bill.1 Under this section a remedy has been introduced which is simpler, but less complete, as it is competent only to the holder before maturity, and there is no provision for recovering the lost acceptance or indorsements. The first indorser of a note is apparently bound to deliver a duplicate to the holder.2 A duplicate bill or note requires to be stamped.3 S. 70. Action on lost bill. As to the rights of the payer, the true owner, and the holder or possessor of a lost bill, see section 59, n.d The true owner is entitled to recover the bill itself before its maturity from any one who is not a holder in due course. But, whether the bill be payable to bearer or to order, he must, on applying under this section for a new bill, tender a complete indemnity to the drawer.5 a 70. In any action or proceeding upon a bill, the court or a judge may order that the loss of the instrument shall not be set up," provided an indemnity be given to the satisfaction of the court or judge against the claims of any other person upon the instrument in question.c a Or accidental destruction.o b This section applies to actions upon all bills, whether before or after maturity, but it does not affect summary diligence. When one person demands payment of a bill as holder, and another as true owner thereof, the acceptor may raise a multiplepoinding.9 A person who has lost a bill must, in order to preserve recourse, demand payment of it, and, if it be dishonoured, give notice, as if it were in his hands.10 If protest is necessary it may be taken on a copy.11 11 9 Agnew v. White, 1899, 1 F. 1026. 10 Thackray v. Blackett, 1811, ? Camp. 164; Story, s. 279; Thomsor 204. 11 S. 51 (8). (h). |