S. 41. hour on a business day and before the bill is overdue *: (b.) Where a bill is addressed to two or more drawees, who are not partners, presentment must be made to them all, unless one has (c.) Where the drawee is dead presentment may (2.) Presentment in accordance with these rules is excused, and a bill may be treated as dishonoured by non-acceptance— (a.) Where the drawee is dead or bankrupt, or is a fictitious person or a person not having capacity to contract by bill;1 (b.) Where, after the exercise of reasonable diligence, such presentment cannot be effected:" (c.) Where although the presentment has been irregular, acceptance has been refused on some other ground. (3.) The fact that the holder has reason to believe that the bill, on presentment, will be dishonoured does not excuse presentment. a See s. 2. b It is not necessary to present at the place of payment or the address noted on the bill.1 The person presenting must use reasonable diligence to present to the drawee him Cf. s. 45 4). self or his representative.1 A bill was presented to a person S. 41. in the drawee's tanyard, who refused to accept, but it was not made clear who this person was. It was held that presentment was not proved.2 That is to say, if the drawee is a merchant, during business hours, and if he is a banker, during bank hours.3 In any case what are business hours is a question of fact to be determined on evidence.1 d See s. 92. e See ss. 14, 45 (2) and 86. f If one refuses to accept, the holder may treat the bill as dishonoured, for he is not bound to take a qualified acceptance.5 The holder of the bill must satisfy himself that a member of a partnership who accepts a bill has authority to bind his firm.6 But presentment is not necessary.7 h See ss. 45 (8) and 49 (15). i See s. 5, n. f j See s. 50, n.b Non-accept 42. When a bill is duly presented for acceptance S. 42. and is not accepted within the customary time, the person presenting it must treat it as dishonoured by non-acceptance. If he do not, the holder shall lose his right of recourse against the drawer and endorsers.a a The time for which a bill should be left for acceptance depends upon the custom of the place of presentment, but the usual time is twenty-four hours, excluding non-business days.8 In the case of Bank of Van Diemen's Land v. Victoria Bank, the defenders at one o'clock on a Friday received 1 Sub-sec. (2 b), infra. 2 Cheek v. Roper, 1805, 5 Esp. 175. 3 Bell's Prin. 336; Thomson, 280. Neilson v. Leighton, 1843, 5 D. 513; 1844, 6 D. 622. 5 Ss. 44 (1), 19 (2 e). 6 See s. 22, n.a No. 6. 8 Bell's Prin. 336; Bank of Van ance. S. 42. from the pursuers a bill to be presented for acceptance, and at two o'clock on the same day presented it and left it for acceptance. Next day the bill was accepted but was subsequently mislaid, and the defenders consented to let it remain in the drawees' hands till the Monday. On the Monday the drawees, having become suspicious of the drawer's credit, cancelled their acceptance. In consequence of this the pursuers raised an action of damages against the defenders.1 At the place of presentment business hours ceased on Saturday at twelve o'clock. The Privy Council held that this consideration justified a jury in holding that the defenders had acted properly in leaving the bill till the Monday, and further expressed the opinion that the defenders would not have failed in their duty though they had not called for the bill till that day. S. 43. Dishonour by non-acceptance and its consequences. It is the duty of the drawee to return the bill, accepted or unaccepted, within the time allowed for acceptance.2 If he does not do so the holder may protest on a copy.3 43. (1.) A bill is dishonoured by non-acceptance(a.) when it is duly presented for acceptance,a and such an acceptance as is prescribed by this Act is refused or cannot be obtained; or b (b.) when presentment for acceptance is excused and the bill is not accepted.c (2.) Subject to the provisions of this Act when a bill is dishonoured by non-acceptance, an immediate right of recourse against the drawer and indorsers. accrues to the holder, and no presentment for payment is necessary. c See s. 41 (2). That is to say, subject to the provisions restricting (1) the holder's right;1 and (2) the liability of prior parties.2 When a bill is accepted for honour the right of recourse is suspended.3 e The holder to make his recourse effectual must take the steps prescribed in ss. 48-51. He may then proceed by action or summary diligence.4 This right of immediate recourse upon dishonour by nonacceptance is not commonly admitted by the laws of foreign nations, and therefore, in the majority of cases, it will not be enforceable against foreign parties.5 The holder has this right in the United States of America, and in Canada and the Australian colonies. In France and the Netherlands, on a bill being dishonoured by non-acceptance, parties are liable to find caution for payment of the bill at maturity, or, failing this, to pay it with re-exchange and expenses.8 In Germany they are bound to find caution for payment of the bill with costs at maturity, or to consign the amount. In Spain they are bound to find caution, or to consign the amount, or to pay it with expenses under deduction of legal interest.10 In Sweden they are bound to find caution, or, in the option of the holder, if he has the bill in his hands, to pay it with expenses, deducting interest at the rate of five per cent.11 a S. 43. 44. (1.) The holder of a bill may refuse to take S. 44. a qualified acceptance, and if he does not obtain an Duties as to unqualified acceptance may treat the bill as dis- qualified achonoured by non-acceptance. ceptances. S. 44. S. 45. (2.) Where a qualified acceptance is taken, and the drawer or an indorser has not expressly or impliedly authorised the holder to take a qualified acceptance, or does not subsequently assent thereto, such drawer or indorser is discharged from his liability on the bill. The provisions of this sub-section do not apply to a partial acceptance, whereof due notice has been given. Where a foreign bill has been accepted as to part, it must be protested as to the balance.s (3.) When the drawer or indorser of a bill receives notice of a qualified acceptance, and does not within a reasonable time express his dissent to the holder, he shall be deemed to have assented thereto. a See s. 2. b See s. 19. h • He cannot subsequently hold the acceptor bound by his qualified acceptance.1 As to his rights see s. 43 (2). a See s. 19 (2 b). e See s. 49 as to the requisites of notice of dishonour. f This provision applies only to bills appearing on the face of them to be foreign.2 g See s. 51. h As to reasonable time for notice of dishonour, see s. 49 (12). 45. Subject to the provisions of this Acta a bill must be duly presented for payment. If it be not so presentment presented the drawer and indorsers shall be discharged.b Rules as to for payment. A bill is duly presented for payment which is presented in accordance with the following rules: (1.) Where the bill is not payable on demand, 1 Bentinck and Dorrein, 1805, 6 East, 199. 2 Ss. 4 and 51 (2). |