already liable 37. Where a bill is negotiated back to the drawer, $. .37. or to a prior indorser, or to the acceptor, such party Negotiation of may, subject to the provisions of this Act,a re-issue and a bill to party further negotiate the bill, but he is not entitled to thereon. enforce payment of the bill against any intervening party to whom he was previously liable." a A bill which has been discharged,1 or a bill payable to a third party which has been paid by the drawer,2 cannot be further negotiated. If a bill has been paid by an indorser, or if a bill payable to the drawer's order has been paid by the drawer, the payer's indorsement and subsequent indorsements must be struck out before the bill is further negotiated.3 4 b A holder of a bill to whom it has been negotiated back, has in the ordinary case no claim against indorsees subsequent to his first indorsement, for he is ultimately liable to them in recourse. Frustra petis quod mox restiturus es. If, however, the holder is not liable to the party to whom he has first indorsed, he may recover from that party. For example, a bill was drawn by A. upon B., and indorsed to C., who indorsed back to A. It was proved that the bill had been indorsed to C., and reindorsed to A., for the purpose of obtaining credit for B. for the price of goods supplied by A. A. was found entitled to recover from C.5 If a person to whom a bill has been negotiated back, again negotiates it before maturity, the indorsee will have right of recourse against all prior indorsers, unless their indorsements have been deleted." 38. The rights and powers of the holder of a bill a are as follows: (1.) He may sue on the bill in his own name : 1 Ss. 59-63. 2 S. 59 (2). 3 S. 59 (2). 4 Thomson, 180; Dickie v. Gutzmer, 1828, 6 S. 637. 5 Wilkinson and Co. v. Unwin, 1881, 7 Q.B.D. 636; see also Holmes and 6 See s. 63 (2). S. 38. Rights of the holder. S. 38. e (2.) Where he is a holder in due course, he holds a See s. 2. But The holder may bring an ordinary action, or claim in a multiplepoinding,1 or do summary diligence, or found on the bill as a ground of compensation.3 summary diligence against a party to a bill is incompetent during the dependence of an action thereon against that party. Neither action nor diligence may be raised till the day after that on which the bill falls due.5 In an action laid on a bill, the bill should be set forth in the conclusions of the summons; but if this is omitted the summons may be amended. A person who relevantly avers that he is in right of a bill, may sue on it, though ex facie of the bill he has no title to it.7 General Duties of the Holder. 39. (1.) Where a bill is payable after sight, pre- S. 39. sentment for acceptance is necessary in order to fix the maturity of the instrument.a When present. ment for acceptancies (2.) Where a bill expressly stipulates that it shall necessary. be presented for acceptance, or where a bill is drawn payable elsewhere than at the residence or place of business of the drawee, it must be presented for acceptance before it can be presented for payment. (3.) In no other case is presentment for acceptance necessary in order to render liable any party to the bill.c (4.) Where the holder of a bill, drawn payable elsewhere than at the place of business or residence of the drawee, has not time, with the exercise of reasonable diligence, to present the bill for acceptance before presenting it for payment on the day that it falls due, the delay caused by presenting the bill for acceptance before presenting it for payment is excused, and does not discharge the drawer and indorsers. a See ss. 12, 13, and 14 (3). b Called a domiciled bill. c By presenting for acceptance the holder at once secures the drawee as a party to the bill, or in case of non-acceptance obtains an immediate right of recourse,1 and also obtains right by assignation to any funds in the drawee's hands belonging to the drawer.2 An agent to whom a bill is sent for presentment is liable for any loss occasioned by his neglect to present for acceptance.3 d See s. 49, n.J • This provision, which is supplemementary to sub-section 1 S. 43 (2). 2 S. 53 (2). 8 Dunlop v. Hamilton and Co., Jan. 16, 1810, F.C.; Bank of Van Diemen's Land v. Victoria Bank, S. 39. (2), applies when the place of payment and the drawee's residence or place of business are some distance apart, so that if a bill either has a short currency or has been drawn abroad, the holder may not have time to present it before the due date. 40. (1.) Subject to the provisions of this Act,a when a bill payable after sight is negotiated," the holder must either present it for acceptance or negotiate it within a reasonable time.f (2.) If he do not do so, the drawer and all indorsers prior to that holder are discharged. (3.) In determining what is a reasonable time within the meaning of this section, regard shall be had to the nature of the bill, the usage of trade with respect to similar bills, and the facts of the particular case.f a The holder is excused from presenting a bill for acceptance in the cases mentioned in s. 41 (2). A holder of a bill who is entitled, under the provisions of s. 5 (2), to treat it as a promissory note, is not bound to present or negotiate it in order to preserve his recourse under this section, for the provisions of this Act as to presentment for acceptance do not apply to notes.1 b These words are omitted in the American Negotiable Instruments Law.2 c See s. 41. d See s. 31. They are discharged though they have sustained no injury by the delay, and are also discharged from liability on the consideration.1 f Reasonable time is to be reckoned against each holder 1 S. 89 (3). 2 Negotiable Instruments Law, 241. 3 Ramchurn Mullick v. Luchmeechund Radakissen, infra, 68. 4 S. 48, n.c from the date when he receives the bill. A series of indorse- 41. (1.) A bill is duly presented for acceptance which is presented in accordance with the following rules: S. 40. S. 41. Rules as to presentment for acceptance, on and excuses for non-pre to sentment. (a.) The presentment must be made by or behalf of the holder a to the drawee or some person authorised to accept or refuse acceptance on his behalf at a reasonable 1 Per Buller, J., in Muilman v. D'Eguino, 1795, 2 H. Bl. 565. 2 Shute v. Robins, 1827, Moo. & M. 133, per Lord Tenterden, C.J.; Fry v. Hill, 1817, 7 Taunt. 397. Mellish v. Rawdon, 1832, 9 Bing. 416; Ramchurn Mullick v. Luchmeechund Radakissen, 1854, 9 Moore, P.C. 46. 4 See also Godfray v. Coulman, 1859, 13 Moore, P. C. 11-bank draft 5 Straker v. Graham, 1839, 4 M. |