extended at any time thereafter as of the date of the S. 93. noting.b a See ss. 51 (2 and 4), 65 (1), 67 (1), 68 (1). See as to noting and protest, s. 51, n.o accessible. 94. Where a dishonoured bill or note a is autho- S. 94. rised or required to be protested," and the services of a Protest when notary cannot be obtained at the place where the bill notary not is dishonoured, any householder or substantial resident of the place may, in the presence of two witnesses, give a certificate, signed by them, attesting the dishonour of the bill, and the certificate shall in all respects operate as if it were a formal protest of the bill.a The form given in schedule 1 to this Act may be used with necessary modifications, and if used shall be sufficient. a See ss. 43, 47. b See ss. 51, 65, 67, 68, 89 (4). • This section is applicable only if no notary can be obtained at the place where the bill is duly presented and dishonoured. A note made by a person who lived in Millport, payable in Bradford, was presented in Bradford and there dishonoured and noted. Subsequently it was presented to the maker personally at Millport; and on his refusing payment, as no notary could be obtained, a certificate was granted in terms of this section. It was held that diligence done under this certificate was inept, because Millport was not the place of dishonour.1 d As to summary diligence thereon, see, section 98, p. 210, infra. • See p. 229, infra. The procedure indicated in the section and schedule should be strictly adhered to.2 1 Sommerville v. Aaronson, 1898, 25 R. 524. 2 Cf. as to notarial protest s. 51, n.1. N S. 95. Dividend warrants may be crossed. S. 96. Repeal. S. 97. Savings. 95. The provisions of this Act as to crossed cheques shall apply to a warrant for payment of dividend.a a See ss. 76-82. 96. The enactments mentioned in the second schedule to this Act are hereby repealed as from the commencement of this Act to the extent in that schedule mentioned.a Provided that such repeal shall not affect anything done or suffered, or any right, title, or interest acquired or accrued before the commencement of this Act, or any legal proceeding or remedy in respect of any such thing, right, title, or interest. a The proviso in section 10 of the Mercantile Law Amendment Act, 1856,1 "that summary diligence shall not be competent on any bill or note issued without a date" is saved by section 98.2 This section and the second schedule have been repealed by the Statute Law Revision Act of 1898.3 97. (1.) The rules in bankruptcy relating to bills of exchange, promissory notes, and cheques, shall continue to apply thereto notwithstanding anything in this Act contained.a (2.) The rules of common law including the law merchant, save in so far as they are inconsistent with the express provisions of this Act, shall continue to apply to bills of exchange, promissory notes, and cheques. (3.) Nothing in this Act or in any repeal effected thereby shall affect (a.) The provisions of the Stamp Act, 1870, or Acts amending it, or any law or enactment for the time being in force relating to the revenue: © 1 19 and 20 Vict. c. 60. 2 Bell's Prin. 343, 3 61 and 62 Vict. c. 22. C (b.) The provisions of the Companies Act, 1862, or S. 97. Acts amending it, or any Act relating to joint 25 and 26 stock banks or companies: (c.) The provisions of any Act relating to or confirming the privileges of the Bank of England or the Bank of Ireland respectively: (d) The validity of any usage relating to dividend warrants, or the indorsement thereof.e a 1. Gratuitous alienations by an insolvent person in favour of those with whom he is conjunct and confident may be set aside under the Act 1621, c. 18, or at common law.1 This rule applies not only to assignations effected either by indorsation by the insolvent person of bills or notes payable to him or by bills drawn by him upon his debtors,2 but also to obligations granted by him by bill or note. Such assignations or obligations are reducible in a question with the conjunct or confident person, but not in a question with a holder in due course.1 The voluntary granting or indorsement of bills and notes in fraud of the more timely diligence of other creditors would fall under the operation of the second part of that Act, without prejudice to the rights of holders in due course. But this enactment is not now of much practical importance.5 6 2. Fraudulent preferences granted by an insolvent person within sixty days of notour bankruptcy, or in view of his insolvency, in security of prior debts, are reducible under the statute 1696, c. 5, or at common law. This rule applies not only to assignations effected either by indorsation by the insolvent person of bills or notes payable to him or by bills 1 See Goudy, 24, 47. 2 See s. 53. 3 Thomas v. Thomson, 1865, 3 M. 1160; 1866, 5 M. 198; 2 Bell's Com. 177; Thomson, 503, 505. 4 S. 38 (2); Thomas v. Thomson, cit. per Lord Cowan. 5 2 Bell's Com. 184-191; Thomson, 513; Goudy, 62, 533. See as to the competency of arresting a bill 6 See as to the date to be taken 7 See Goudy, 39, 90. Vict. c. 89. S. 97. drawn by him upon his debtors, but also to obligations undertaken by him by bill or note.2 Such assignations or obligations are reducible in a question with the immediate grantee or an indorsee not in due course,3 but not in a question with a holder in due course. But only so much may be recovered from the grantee as has been received by him for the bill.5 If an accommodation bill is indorsed by the party accommodated to one of his creditors, this cannot be challenged; for it does not carry off any part of the estate, but merely substitutes the accommodation party as a creditor in place of the indorsee." 8 Payments in cash, transactions in the course of trade, and nova debita, are not affected by this statute. A cheque on the granter's banker, or a bank draft, will generally be held equivalent to cash. A bill of exchange, drawn, accepted, or indorsed by an insolvent person will also be considered equivalent to cash, if it is the ordinary way of making payment in the circumstances in which it is granted, for example, if it is a foreign remittance, or a payment to credit of a cash account which includes bills.9 But apart from such exceptions the indorsement of bills or cheques is not an ordinary way of making payment, and is therefore held to constitute a fraudulent preference, though the bills are due when indorsed.10 Premature payments, whether by bill or by cash, are reducible under the Act, unless made in the ordinary course of trade. But the retiring of a bill before 1 See s. 53. 2 Bank of Scotland v. Faulds, 1870, 3 Bank of Scotland v. Faulds, cit. 5 Scott and Co.'s Trustee v. Low 6 2 Bell's Com. 195-6; Thomson, 521. 7 Horsbrugh v. Ramsay and Co., 1885, 12 R. 1171, per L.P. Inglis, 1176; Carter v. Johnstone, 1886, 13 R. 698, per Lord M'Laren, 703, and Lord Shand, 707. 8 2 Bell's Com. 203. 9 2 Bell's Com. 204; Horsbrugh v. Ramsay and Co., cit. per L.P. Inglis, 1176; see Blincow's Tr. v. Allan and Co., 1833, 7 W. & S. 26. 10 White v. Briggs, 1843, 5 D. 1148; Horsbrugh v. Ramsay and Co., cit.; Nicol v. M'Intyre, 1882, 9 R. 1097,-bills not due; Carter v. Johnstone, cit. Anderson's Tr. v. Somerville and Co., 1899, 36 S.L.R., 833-cheques. 11 M'Laren's Tr. v. National Bank, 1897, 24 R. 920; M'Farlane v. Robb and Co., 1870, 9 M. 370; Speir v. Dunlop, 1825, 4 S. 92 (n.e. 94); 1826, 2 W. & S, 253; 1827, 5 S 729 (n.e. 680); Goudy, 101. 3 maturity is in the ordinary course of banking business.1 S. 97. A single transaction within the period covered by the statute, for example, the granting of a bill in return for goods purchased at the time, or the indorsement of a bill in return for an immediate advance of money, is clearly within the exception of nova debita. But the exception further extends to whatever is done by an insolvent in implement of a specific obligation undertaken prior to the statutory period. In particular it extends to the granting of a security which has been definitely stipulated for,5 though not to the implement of a general obligation to deliver security. 3. Payment by Bankrupt.—All payments made by a bankrupt after sequestration, unless with consent of his trustee, are null. But if the possessor of a bill or note payable by a bankrupt, with recourse on other parties, receives payment thereof from the bankrupt in ignorance of the sequestration and gives up the bill, he is not bound to pay the amount over again to the trustee, unless he is placed in the position in which he stood or reimbursed for any damage.7 8 The discharge of a bankrupt does not discharge any person bound with him as co-obligant or cautioner; therefore, though the acceptor of a bill is discharged in bankruptcy, the bill is not discharged.9 4. Claims in Sequestration.-(a) Claimants.-The person who is truly the creditor in a bill,10 whether he is the last indorsee or a prior party to whom the bill has been returned,11 is entitled to claim in the sequestration of any party to the bill 1 M'Laren's Tr. v. National Bank cit. 2 Watson v. Young, 1826, 4 S. 507 (n.e. 515); Horsbrugh v. Ramsay and Co., cit., per L. P. Inglis, p. 1177; Thomson, 528; Goudy, 102. 3 Robertson v. Ogilvie, 1798, M. "Bill" App., No. 6. 4 Miller's Tr. v. Shield, 1862, 24 D. 821. 5 Lindsay v. Adamson, 1880, 7 R. 1036, per L.P. Inglis, p. 1041; Goudy, 103 et seq. 6 Tod and Hill's Tr. v. Union Bank, 1851, 14 D. 200; Paterson's Tr. v. Paterson's Trs., 1891, 19 R. 91; Stiven v. Scott and Simson, 719 and 20 Vict., c. 79, s. 111. 9 See ss. 59 and 62. 10 Campbell v, Myles, 1853, 15 D. 685; Wixon v. Nicoll, 1849, 11 D. 1188. 11 Aitken v. Woodside, 1852, 14 D. 572; Hain v. M'Cubbin, 1853, 16 D. 179; Nicoll v. Romanes, 1855, 18 D. 283; Lawrie v. Harvey, 1848, 10 D. 1236. |