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As to business and non-juridical Sec. 51.
see s. 45, sub-s. 7, and note thereto. days, see es. 14 and 91.
* This clause is taken from 14 & 15 Vic. c. 91, s. 1, C. S. U. C. c. 42 s. 15, and R. S. C. c. 120, s. 22. An indorsee of a note payable at a bank, having taken there on the last day of grace, arrested defendant at five o'clock on the same day : Held, that under 14 & 15 Vic. c. 94, s. 1, he was entitled to sue at any time after three o'clock, had the note been payable generally : Sinclair v. Robson, 16 U. C. Q. B. 211. Immediate notice of dishonor for non-payment at eleven o'clock, after the acceptor has refused payment, is good, and the law does not impose the duty of enquiring again before a later hour of the day : Ex parte Moline, 19 Ves. 216.
8 A protest is properly speaking, a solemn declaration on behalf of the holder, against any loss to be sustained by the non-acceptance or by the non-payment of the bill, as the case may be; though in a popular sense it includes all the steps after the dishonor of negotiable paper, necessary to charge a party to it. It is highly important that a copy of the bill should be prefixed to all protests, with the indorsements thereon verbatim, whenever practicable, and that the reasons given by the drawee for nonpayment, should also be stated on the protest. The protest is required to be made out and drawn up by a notary public, if there be one in or near the place, when the bill is payable or the acceptance is to be made. It should be made out and drawn up in the form required by the law or usage of the place where it is made. So essential is the producton of a protest for non-acceptance, that it cannot be supplied by mere proof of noting the bill for non-acceptance, and a subsequent protest for non-payment: Story on Bills, s. 276. The French Code contains more formal directions as to protest. Where there is no notary, a justice of the peace may protest the bill or note, under s. 93. See the forms for protests in the first schedule to the Act; and the tariff of fees, note 4, s. 93, p. 270.
• This clause provides for the “accidental” detention of a bill,
-a provision which is not in the English Act. But such detention would, it is presumed, under the succeeding clause, be an excuse for delay caused by circumstances beyond the control of the holder..
10 It may be a question whether this clause covers the case provided for in s. 48, which excuses non-notice in the case of a bill dishonored by nonacceptance, but which is subsequently accepted, and comes into the hands of a “holder in due course. See notes to s. 46 and to s. 50.
11 This clause is a re-enactment of R. S. C. c. 123, s. 1l; and has been law in Ontario and Quebec since 1850.
52. When no place of payment is specified in the bill or Liability of acceptance, presentment for payment is not necessary in Imp. Act,8.52 order to render the acceptor liable:1
Ind. Act, s 93. of presentment.
2. When a place of payment is specified in the bill or acAs to place ceptance, the acceptor, in the absence of an express stipula
tion to that effect, is not discharged by the omission to present the bill for payment on the day that it matures, but if any suit or action be instituted thereon before presentation the costs thereof shall be in the discretion of the court : 2
No protest or notice necessary.
3. In order to render the acceptor of a bill liable, it is not necessary to protest it, or that notice of dishonor should be given to him :3
Presentment for payment.
4. Where the holder of a bill presents it for payment, he shall exhibit the bill to the person from whom he demands payment, and when a bill is paid the holder shall forth with deliver it up to the party paying it. 4
6. When a
1 This differs slightly from the English Act which reads : bill is accepted generally, presentment,” &c. As to what is a general acceptance of a bill, see s. 19 and the notes thereto. The reason why it is not necessary to present the bill to the acceptor in order to render him liable, would seem to be, (1) his acceptance of the bill, without specifying a place of payment, is a contract to pay an unconditional order for a sum certain at the time agreed upon; and (2) his duty, by the common law, is to seek out his creditor if he be in the country, and tender him the money he has agreed to pay: Co. Litt. s. 340. The person to be discharged is bound to do the act which is to discharge him, and not the other party : Cranley v. Hillary, 2 M. & S. 120. And so where a party guarantees the payment of a note, he is liable on such guarantee, if the note is dishonored when due; and presentment of the note to him is not necessary : Walton v. Mascall, 13 M. & W. 452. This clause does not apply to promissory notes. See note 5 to s. 45, and note 1 to s. 86.
2 This provides for the converse of the first clause, and is an improvement on the phraseology of the English Act. The“ express stipulation,” may mean the insertion of the old form of words “only and not otherwise or elsewhere ; and may make presentment for payment a condition precedent to the acceptor's liability. Thus where an acceptor of a bill, or maker of a note, makes the bill or note payable at a specified bank or office, and adds such words as only and not elsewhere,” the holder must present the bill or note on the day it matures, at the place specified thereon, before he can commence an action against the acceptor or maker. And if such action be brought before such due presentment, the costs of the action are, by the latter part of the clause (which is not in the
English Act), in the discretion of the Court. And it may be a question Sec. 52. whether the provision of the law, whereby a cheque is made a bill of exchange payable on demand, may not import into the case of a demand note, the penalty which attaches to the non-presentment of a cheque within a reasonable time, by which, when such non-presentment has damnified the position of the drawer of the cheque, such drawer is discharged. If presentment be not made at a designated place on the maturity of the bill, the acceptor will still, according to the general law, remain liable to pay the same, whenever afterwards payment shall be demanded there; at least if he has not sustained any loss or injury by the delay : Story on Bills, s. 355. But in the United States, if the acceptor have funds at the designated place, and the bank has since failed, the acceptor will be discharged. Ibid. s. 356. An acceptance to pay at a banker's must be tendered for payment within the same time that a note must : Bishop v. Chitty, 2 Stra. 1194 ; s. p. Serle v. Norton, 2 Mo. & R. 401. But see Mullick v. Radakissen, 9 Moore, P. C. 70. There is a similar phrase : “omission to present the note for payment on the day that it matures,” in s. 86, applicable to promissory notes made payable at a particular place.
ILLUSTRATIONS. Where a bill is accepted generally, presentment need not be alleged or proved, in order to bind the acceptor : Fayle v. Bird, 6 B. & C. 531.
The defendants were makers of a joint and several promissory note with one H., as sureties for him, payable to the plaintiff ;-Held, that on default of payment at maturity, their liability to pay became absolute ; and that it was no defence for them that the plaintiff neglected to present the note for payment, or give notice of non-payment by H., who subsequently had become insolvent: Wilson v. Brown, 6 App. R. 87.
Where a bill is drawn payable generally, the holder is not bound to take an acceptance, by the acceptor, payable at a particular place and not elsewhere, because such an acceptance narrows the general liability of the acceptor : Gammon v. Schmoll, 5 Taunt. 344.
The maker of a promissory note is not entitled to notice of dishonor: Pearse v. Pemberthy, 3 Camp. 261.
3 This is in harmony with the first part of s. 51, as to inland bills, except as to bills payable in the Province of Quebec. See notes to ss. 51 and S6.
* Presentment for payment, must mean presentment according to mercantile usage. The document itself must be present, though not the holder, so as to enable the person presenting it to give it up, if paid. It must be such a presentment as would be sufficient to charge indorsers or other persons collaterally liable on the bill : Griffin v. Wetherby, L. R. 3 Q. B. 760. The custom of merchants is, that the holder shall present the bill at its maturity, demand payment, and upon receipt of the amount, deliver up the bill : Hansard v. Robinson, 7 B. & C. 90. See further,
Liabilities of Purties. 53. A bill, of itself, does not operate as an assignment of funds in the hands of the drawee available for the payment thereof, and the drawee of a bill who does not accept as required by this Act is not liable on the instrument. 1
1 It was formerly held that a bill or cheque was an appropriation of so much money in the hands of the banker on whom it was drawn. “In one respect a cheque differs from a bill of exchange, for it is in the nature of an appropriation of money in the banker’s bands, for the purpose of discharging a liability of a drawer to a third person :” Per Byles, J., in Reene v. Beard, 6 Jur. N. S. 1251. And this view seems to have been sustained by the case of Hill v. Royds, L. R. 8 Eq. 292, where the acceptor of a bill, before the bill fell due, paid the amount into his bankers, in order to meet it at maturity. He died the day the bill matured, and the bankers refused payment; but Sir R. Malins, V. C., said: “It was the duty of the bankers to have appropriated the amount in payment of the bill; and, in my opinion, they were wrongdoers in not paying the bill, but permitting it to be dishonored.” Subsequently in 1874, when the question came up directly, Sir G. Jessel, M. R., dissented from Keene v. Beard, and came to a different opinion and said : “A cheque is clearly not an assignment of money in the hands of a banker; it is a bill of exchange payable at a banker's. The banker is bound by his contract with his customer to honor his cheque when he has sufficient assets in his hands; if he does not fulful his contract, he is liable to an action by the drawer, in which heavy damages may be recovered, if the drawer's credit has been injured :" Hopkinson v. Forster, L. R. 19 Eq. 74. This case has been followed in Schroeder v. Central Bank of London, 34 L. T. Rep. 735. The result established by the later cases is, that there is no privity of contract between the drawee of a bill or cheque, and the holder of such bill or cheque, until their relations are changed by the drawee's acceptance. But privity may be created by an agreement or representation, external to the bill or cheque, by which a liability may be created, which can be enforced by the courts. Nor is a letter of credit an equitable assignment, or specific appropriation, of moneys in the hands of the party to whom it is addressed. It is simply a statement by a banker that he has opened a credit, under instructions in favor of a particular person : Morgan v. La Riviere, L. R. 7 H. L. 432.
Where A. in writing authorized B. to draw a bill on him, which he agreed to accept ; and a bank on the representation of such writing, advances the amount to B. on the bill so drawn, there is a clear equity in the Court to order A. to accept the bill, and if past due at the time of the action, to order him to pay it: Bank of Montreal v. Thomas, 16 Ont. R. 505. See further cases on pp. 80, 81.
Where A. consigned coffee to M. & Co., and drew bills on them, which Sec. 53. they declined to accept, and then wrote to S. to realize the coffee and honor the bills, some of which were in K.'s hands, and S. having notified R. to that effect ;-Held, that R. had an equitable charge on the proceeds of the coffee : Ranken v. Alfaro, 5 Ch. D. 786.
Contract of acceptor. Imp. Act,8.54
ss. 32 & 121. Engages
54. The acceptor of a bill, by accepting it
(a) Engages that he will pay it according to the tenor Iud. Act, of his acceptance; 1
(6) Is precluded from denying to a holder in due course— Estoppels.
(1) The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the bill; 2
(2) In the case of a bill payable to drawer's order, the then capacity of the drawer to indorse, but not the genuineness or validity of his indorsement;
(3) In the case of a bill payable to the order of a third person, the existence of the payee and his then capacity to indorse, but not the genuineness or validity of his indorsement. 3
1 An acceptance admits the genuineness of the signature of the drawer, and his legal competence or capacity to draw the bill. It implies a contract on the part of the acceptor with the payee or lawful holder thereof, to pay the amount of the bill when it becomes due, and whether presented or not, according to the tenor of the acceptance. “ The effect of accepting a bill, or making a note, is an absolute contract on the part of the acceptor of the one, or the maker of the other, to pay the payee or order, or bearer, as the instrument may require :” Byles on Bills, 2. The acceptor of a bill knows that, by his acceptance, he does an act which will render hiin liable to indemnify any indorser of it, who may afterwards pay it : Duncan v. North and South Wales Bank, 6 App. Cas. 1. This clause does not apply to promissory notes, as s. 87 prescribes the terms of the contract of the maker of a note.
2 This clause may have to be taken with some qualification, for it does not pretend to define the contract liabilities of the other parties to a bill. As the clause reads, the acceptor of a bill is “precluded,” i. e., absolutely estopped, from denying as against a holder in due course, four facts respecting the bill : (1) the existence of the drawer ; (2) the genuineness of his signature; (3) his capacity, and (4) his authority, to draw the bill. By ss. 5 and 7, the effect of a name on a bill being that of a fictitious or non-existing person, is defined. By s. 24, a forged or unauthorized signa