Sec. 43. personal rights, became technical words applicable only to those contracts between merchants which are known as bills of exchange and promissory notes. They seem to have been used from time immemorial by the merchants of various nationalities in a technical sense. They have now become words of known legal import, with reference to such contracts, and have been judicially construed by Courts, and recognized by legislatures, as having a certain meaning when applied to bills or notes; but they have no recognized or technical meaning or application to any other species of contract known to the law. "The Solicitor-General argues that the phrase 'duly honored,' means accepted; whether it does so or not has been left to the jury, and they have found that it meant due payment; which is the opinion that I should myself have formed :" Per Park, J., in Lucas v. Growning, 7 Taunt. 164. A bill is, in the technical phrase, said to be honored, when it is duly accepted; when it becomes payable, by lapse of time, it is said to have arrived at maturity; and when acceptance or payment thereof is refused, it is said to be dishonored: Story on Bills, s. 126.

Qualified! acceptance may be refused.

If taken without authority.

2 Presentment for acceptance is regulated by s. 41, and the requisites for a valid acceptance are defined by ss. 17 and 19. By s. 17 a qualified acceptance is defined, and by s. 41, the holder of a bill may refuse such an acceptance.

The excuses for non-presentment for acceptance are set out in s. 41, sub-s, 2. This may be read as subject to the provisions in ss. 15 and 64 as to an acceptance for honor, supra protest; but the holder is not bound to resort to the “referee in case of need,” if such there be. His agreeing to take an acceptance for honor, suspends his right of action against the drawer and indorsers. The indorser, like the drawer of a bill, is liable to the holder, the moment the drawee has refused acceptance: Ross v. Dixie, 7 U. C. Q. B. 414. An action lies against an indorser immediately on the non-acceptance of the bill by the drawee, although the time for which the bill was drawn, has not expired: Ballingalls v. Gloster, 3 East 481. But a drawer may request that, in case the bill is not honored by the drawee, it be returned without protest, by substituting such words as "return without protest;" and such a condition would bind him, and perhaps the indorsers: Chitty on Bills, 120. See further s. 38.

44. The holder of a bill may refuse to take a qualified acceptance, and if he does not obtain an unqualified acceptance may treat the bill as dishonored by non-acceptance: 1

2. Where a qualified acceptance is taken, and the drawer or an indorser has not expressly or impliedly authorized 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 Sec. 44. partial acceptance, whereof due notice has been given; Partial where a foreign bill has been accepted as to part, it must be protested as to the balance :

acceptance.

be deemed

3. When the drawer or indorser of a bill receives notice What shall of a qualified acceptance, and does not within a reasonable assent. time express his dissent to the holder, he shall be deemed to have assented thereto. 2

1 In all cases the holder of a bill is entitled to have an absolute unconditional and unqualified acceptance of the bill as drawn, and he is not bound to take any other: Story on Bills, s. 240. A man is not bound to receive a limited or qualified acceptance; he may refuse it and resort to the drawer Gammon v. Schmoll, 5 Taunt. 353. And he may refuse a special acceptance when the mode of payment differs in form from that required by the bill: Boehm v. Garcias, 1 Camp. 425. If a bill drawn by one merchant on another is presented for acceptance, the drawee has no right to alter the bill as drawn, or to strike out a word in it. He may refuse to accept, or may accept conditionally, or in a qualified manner : Decroix v. Meyer, 25 Q. B. D. 343.

2 A qualified acceptance is a variation of the original contract, and should the holder agree to such a variation of the contract, without the assent of the drawer and indorser (if any), he discharges them from liability on the bill. If the holder intends to refuse the qualified acceptance offered by the drawer, he should note the bill for non-acceptance, and should give notice of dishonor to the antecedent parties. If he intends to acquiesce in it, he must give notice of the nature of the acceptance to all previous parties. Formerly the law required him to obtain the consent of such previous parties to his taking a qualified acceptance, or they were held to be discharged: Rowe v. Young, 2 Bligh 391. This clause retains the old rule of law, but authorizes the holder to give notice of such qualified acceptance to the drawer and indorsers, and throws upon them the onus of agreeing or disagreeing to the holder taking such qualified acceptance. If such qualified acceptance is taken, the holder should not protest the bill, or give a general notice of dishonor, for he would thereby preclude himself from recovering against the acceptor: Byles on Bills, 149. But where a holder takes a partial acceptance he should protest the bill for the balance, and give notice of dishonor to all prior parties.

presented for

45. Subject to the provisions of this Act, a bill must be Bill must be duly presented for payment; if it is not so presented, the payment. drawer and indorsers shall be discharged : 1

Sec. 45.

Rules as to

presentment

When due.

When pay

able on demand.

Reasonable

time.

Usage and facts re

garded.

Presentment

at proper place to payer.

Proper place 18,

Specified;

Address of acceptor;

Acceptor's place of business;

Other cases.

2. A bill is duly presented for payment which is presented in accordance with the following rules :

:

(a) Where the bill is not payable on demand, presentment must be made on the day it falls due; 2

(b) Where the bill is payable on demand, then, subject to the provisions of this Act, presentment must be made within a reasonable time after its issue, in order to render the drawer liable, and within a reasonable time after its indorsement, in order to render the indorser liable; 3

In determining what is a reasonable time, regard shall be had to the nature of the bill, the usage of trade with regard to similar bills, and the facts of the particular case;

(c) Presentment must be made by the holder or by some person authorized to receive payment on his behalf, at the proper place, as hereinafter defined, either to the person designated by the bill as payer or to his representative or some person authorized to pay or refuse payment on his behalf, if, with the exercise of reasonable diligence, such person can there be found; 4

(d) A bill is presented at the proper place,

(1) Where a place of payment is specified in the bill or acceptance, and the bill is there presented; 5

(2) Where no place of payment is specified, but the address of the drawee or acceptor is given in the bill, and the bill is there presented;

(3) Where no place of payment is specified and no address given, and the bill is presented at the drawee's or acceptor's place of business, if known, and if not, at his ordinary residence, if known;

(4) In any other case, if presented to the drawee or acceptor wherever he can be found, or if presented at his last known place of business or residence :

3. Where a bill is presented at the proper place, and, Sec. 45. after the exercise of reasonable diligence, no person auth- Where no orized to pay or refuse payment can be found there, no proper place. further presentment to the drawee or acceptor is required: 6

person at

several

4. Where a bill is drawn upon, or accepted by two or Where more persons who are not partners, and no place of acceptors. ment is specified, presentment must be made to them all: 7

pay

Where

acceptor is

5. Where the drawce or acceptor of a bill is dead, and no place of payment is specified, presentment must be made dead. to a personal representative, if such there is, and with the exercise of reasonable diligence he can be found : 1

6. Where authorized by agreement or usage, a presentment through the post office is sufficient : 2

7. Where the place of payment specified in the bill or acceptance is any city, town or village, and no place therein is specified, and the bill is presented at the drawee's or acceptor's known place of business or known ordinary residence therein, 3 and, if there is no such place of business or residence the bill is presented at the post office, or principal post office in such city, town or village, such presentment is sufficient. 4

1It has been recommended by Judges, as a protection to bankers, who might inadvertently pay bills or notes on forged signatures, that they should require their customers to "domicile their bills” at their own offices or places of business, (i. e., make them so payable), and then honor them there when presented for payment, by giving a cheque on their banker for the requisite amount: Robarts v. Tucker, 16 Q. B. 560. Presentment for payment, as well as for acceptance, are governed by different considerations. The presentment for acceptance should be personal, and made to the drawee himself, or to his agent, for he, or his agent, has personally to do what the Act requires,-write his signature, with or without additional words, on the bill; and the locality of presentment is immaterial, if the hour and day are proper. The presentment for payment should be local, and made where the money is, or ought to be, so that the acceptor, or his agent, or correspondent, or banker, may pay the money called for by the bill. Again, the day of the presentment for acceptance is immaterial so long as the day is "a business day," and the hour "a reasonable hour." But the day of payment is a fixed day (except in the

Post office.

Where no town, &c., is

place in city,

specified.

Sec. 45. case of sight or demand bills), and cannot be waived, or an extra day, or other indulgence as to time, given. Not only is this duty enforced by the law, by providing that the parties to the bill shall be discharged from liability by its non-observance; but the original debt may also be lost. For where a creditor takes a bill or note from his debtor in satisfaction of the debt, it will be presumed that the money was received, unless the contrary is shown: Hebden v. Hartsink, 4 Esp. 46. And if the creditor takes a bill from his debtor, as collateral security for the payment of his debt, and if he neglects to present it for payment, or, if dishonored, to give notice of such dishonor, and the bill consequently becomes worthless, he cannot afterwards sue his debtor either on the bill, or for the original consideration: Peacock v. Purssell, 14 C. B. N. S. 728; but see Bottomley v. Nuttall, 5 C. B. N. S. 315. In strict law no demand is necessary against an acceptor, but in practice a demand is usual: McIntosh v. Heydon, Ry. & Mo. 362. But see s. 52 sub-s. 2. The provisions of the Act, to which this section is made subject, are the clauses which define what are excuses for non-presentment for payment and delay. See also, s. 39, subs. 4; and notes to s. 46.

2 In the section prescribing the rules for presentment for acceptance (s. 41), it is required that the presentment be made "at a reasonable hour on a business day." Prior to this Act, such was the rule and the custom of merchants, as to presentment of a bill for payment. What is a reasonable hour for presenting a bill for payment, may be illustrated as follows. If a bill is payable at a bank, the presentment should be during banking hours. If payable at a post office, then during the regular post office hours. If payable at an office or a place of business, then during the ordinary office or business hours. If payable at a private house, then at any reasonable hour up to about bed-time. What are reasonable hours, must be determined by the present customs of localities, and not by the earlier cases, for business hours are different now to what they were a century ago. The English Act repeats these words in clause (c); but though they are omitted in this section, it may be assumed that the old rule will still be applicable.

ILLUSTRATIONS.

A demand made the day before the bill matures is insufficient: Henry v. Jones, 8 Mass. 453.

Demand of payment of a bill made on the second day of grace, is a nullity Wiggen v. Roberts, 1 Esp. 261.

The presentment of a note a few minutes before twelve o'clock at night, is not a reasonable hour, and not sufficient to hold an indorser : Dana v. Sawyer, 22 Me. 244.

A presentment of a bill at a counting house (where it is made payable), between six and seven o'clock in the evening is sufficient: Morgan v. Davison, 1 Stark. 114; or at eight in the evening, Barclay v. Bailey, 2 Camp. 527; s. p. Triggs v. Newnham, 1 C. & F. 631; Wilkins v. Jadis, 2 B. & Ad. 188.