condition which had not been complied with. Bell v. Ingestre, Ld., 12 Q. B. 317. So, on a traverse of a previous indorsement by A. to B., it might have been shown that A. had delivered it to B. as agent only, and B. had indorsed it in fraud of the true owner, with the plaintiff's privity. Marston v. Allen, 8 M. & W. 494. Again, where the payee indorsed specially to M., and handed it to him to get discounted, and he indorsed it to plaintiff without value when overdue, it was held on a traverse of the indorsement from the payee to M., that the defendant was entitled to the verdict. Lloyd v. Howard, 15 Q. B. 995; 20 L. J., Q. B. 1. But, in many of the above cases the defence must now be pleaded specially. See Rules, 1883, O. xix. r. 15, ante, p. 301. And, where the plaintiff was a bona fide holder for value, on a traverse of the indorsement by A., the payee, to a previous indorser, B., the defendant could not show that A. delivered the bill for a particular purpose, and B. fraudulently negotiated it. Hayes v. Caulfield, 5 Q. B. 81. So, where E. indorsed a bill in blank, and delivered it to B. to get discounted, and he deposited it with T. for value received by himself, it was held that this proved an indorsement from E. to T.; Barber v. Richards, 6 Exch. 63; 20 L. J., Ex. 135; for, if the holder put his name on the back of a bill, and deliver it to his agent for a particular purpose, and he deliver it to a third person for value, that is an indorsement from the holder to such third person. Per Parke, B., Ibid. Nor, is it any answer, on a denial of the indorsement, that it was indorsed to the plaintiff by the directors of a company (intermediate indorsees), who had no authority to indorse; for, it is enough if the indorsement give a title to the bill, though the company may not be bound by such indorsement. Smith v. Johnson, 3 H. & N. 222; 27 L. J., Ex. 363. See also Denton v. Peters, L. R., 5 Q. B. 477, 479. An indorsement in blank by the maker of a note, and a delivery by his executor to the plaintiff, is no indorsement to the plaintiff so as to give him a title to sue. Bromage v. Lloyd, 1 Exch. 32. As to restricting the negotiability of a bill by the acceptance, see Decroix v. Meyer, ante, p. 353.

Evidence under money claims.] Although an acceptance has been said to be evidence of money had and received by the acceptor to the use of the holder (Bayley on Bills, 6th ed., 363), yet, on principle, it can be available upon the money claims only where there is privity; as, where the parties on the record are immediate parties on the bill, or, there has been a promise to pay, an account actually stated, or, acknowledgment of liability; and, the later authorities are to that effect. Waynam v. Bend, 1 Camp. 175; Eales v. Dicker, M. & M. 324; and the cases cited ante, p. 358.

Drawer against Acceptor.

When a bill, though not payable to the drawer's own order, has been dishonoured by the acceptor, and taken up by the drawer, he may sue the acceptor; Simmonds v. Parminter, 1 Wils. 185; and in such action may be obliged by proper defences to prove, 1. The acceptance, as to proof of which, see ante, pp. 351 et seq.; 2. The presentment to the defendant, as to proof of which, see post, pp. 367 et seq., and his refusal to pay, which may be done by calling the person who presented the bill, or by proving a promise by the defendant to pay, which dispenses with proof of the presentment; and 3. The return of the bill to, and payment thereof by, the plaintiff. To prove the latter fact, it has been held not sufficient to produce the bill with a general receipt on the back of it from the then holder; for the receipt prima facie imports that the bill was paid by the acceptor. Scholey v. Walsby, Peake, 25. But, the legitimacy of this

last presumption is doubtful; per cur. in Phillips v. Warren, 14 M. & W.

379.

Payee or Indorsee against Drawer.

In an action by the payee or indorsee against the drawer, the plaintiff may have to prove, 1. The drawing of the bill; 2. Presentment to the drawee for acceptance or to acceptor for payment; 3. His default; 4. Due notice to the defendant of the default or dishonour; and 5, in the case of an indorsee, the indorsements, as to proof of which see ante, pp. 360 et seq.

Drawing-Statute.] By sect. 55, "(1.) The drawer of a bill by drawing it-(a.) Engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured he will compensate the holder or any indorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken."

Sect. 16. "The drawer of a bill, and any indorser, may insert therein an express stipulation

"(1.) Negativing or limiting his own liability to the holder:

(2.) Waiving as regards himself some or all of the holder's duties." By sect. 72 (1), ante, p. 345, when a bill is payable abroad, the obligations of the acceptor, and therefore of the drawer and indorsers, are regulated by lex loci of performance of contract.

Proof of the drawing.] The drawing of the bill, when traversed, must be proved by evidence of the drawer's handwriting; or, if drawn by the agent, by proving the authority of the agent and his handwriting. A farm bailiff, intrusted to pay and receive money, has not any implied authority to bind his principal by drawing bills. Davidson v. Stanley, 2 M. & Gr. 721; and see further as to authority of agent, ante, pp. 356, 357. If drawn in the name of a partnership, the partnership must be proved, and the handwriting of the partner who drew the bill. See further, Proof of acceptance of partners, ante, p. 354. As to proof of partnership, see post, Action for goods sold; delivery to partner, post, pp. 533 et seq.

Presentment to drawee for acceptance Statute.] Sect. 39, "(1.) Where a bill is payable after sight, presentment for acceptance is necessary in order to fix the maturity of the instrument.

"(2.) Where a bill expressly stipulates that it shall 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.

"(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."

Sect. 40. " (1.) Subject to the provisions of this Act" (vide sect. 41 (2), post, p. 366), "when a bill payable after sight is negotiated, the holder must either present it for acceptance or negotiate it within a reasonable time.

"(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."

Sect. 41. "(1.) A bill is duly presented for acceptance which is presented in accordance with the following rules:

"(a.) The presentment must be made by or on behalf of the holder to the drawee or to some person authorized to accept or refuse acceptance on his behalf at a reasonable 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 authority to accept for all, then presentment may be made to him only:

per

"(c.) Where the drawee is dead, presentment may be made to his sonal representative: "(d.) Where the drawee is bankrupt" (vide sect. 2, ante, p. 339), “presentment may be made to him or to his trustee :

"(e.) Where authorized by agreement or usage, a presentment through the post office is sufficient.

"(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:

(b.) Where, after the exercise of reasonable diligence, such present

ment 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."

66

Sect. 42. (1.) When a bill is duly presented for acceptance, and is not accepted within the customary time, the person presenting it must treat it as dishonoured by non-acceptance" (vide sect. 48, post, p. 370). "If he do not, the holder shall lose his right of recourse against the drawer and indorsers." As to protesting a bill not returned by the drawee, vide sect. 51 (8), post, p. 375.

Sect. 43. " (1.) A bill is dishonoured by non-acceptance

"(a.) when it is duly presented for acceptance, and such an acceptance as is prescribed by this Act" (vide sect. 17 (2), ante, p. 351), “is refused or cannot be obtained; or

"(b.) when presentment for acceptance is excused and the bill is not accepted.

"(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."

Sect. 44. (1.) The holder of a bill may refuse to take a qualified acceptance" (vide sect. 19 (2), ante, p. 352), "and if he does not obtain an unqualified acceptance may treat the bill as dishonoured by nonacceptance.

"(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 partial acceptance”

(vide sect. 19 (2) (b), ante, p. 352), "whereof due notice has been given. Where a foreign bill has been accepted as to part, it must be protested as to the balance.

"(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."

Presentment to drawee for acceptance.] Where a bill, presentment of which for acceptance is not required by sect. 39, ante, p. 365, has been presented and acceptance refused, due notice of such refusal must be given; Blesard v. Hirst, 5 Burr. 2670; Goodall v. Dolley, 1 T. R. 712; and all parties entitled to notice are discharged by want of it; S. CC.; and are not liable on a subsequent refusal of the drawee to pay; Roscow v. Hardy, 12 East, 434; and see sect. 42, ante, p. 366. But by sect. 48 (1), post, p. 370, the drawer is not discharged by want of notice of non-acceptance, as against a subsequent holder in due course. It may be observed that what is said by the drawee on the bill being presented is evidence for the plaintiff of want of assets, but not what passed between the drawee and the holder afterwards. Prideaux v. Collier, 2 Stark. 57. The bill must be left with the drawee for twenty-four hours, unless during that time he either accept or refuse to do so. Bayley on Bills, 6th ed., 194; Van Dieman's Land, Bank of v. Victoria, Bank of, L. R., 3 P. C. 543. The drawee may revoke and cancel his acceptance before he parts with the bill. Cox v. Troy, 5 B. & A. 474.

It is not sufficient to show that the bill was presented to some person on the drawee's premises without connecting him with the drawee. Cheek v. Roper, 5 Esp. 175.

Where the payee delayed for eight months to present a bill drawn in Calcutta to the drawee at Hong Kong, payable sixty days after sight, the drawer was held discharged; Mullick v. Radakissen, 9 Moo. P. C. 46; although no actual loss or damage had been caused by the delay, and the parties to it continued solvent. S. C. The holder may, however, put the bill into circulation without presenting it. Muilman v. D'Eguino, 2 H. Bl. 565. And the question in such cases is, whether, looking at the situation and interests of each holder and drawer, there has been any unreasonable delay on the part of the former in forwarding the bill for acceptance or putting it into circulation. Mellish v. Rawdon, 9 Bing. 416. In that case, a delay of nearly five months on a foreign bill was allowed, the exchange having fallen against the plaintiff immediately after the purchase by him of the bill. See also Chartered Mercantile Bank of India, &c. v. Dickson, L. R., 3 P. C. 574. With regard to bills able after sight, drawn by bankers in the country on their correspondents in London, “It does not seem unreasonable," says Lord Tenterden, “to treat bills of this nature as not requiring immediate presentment, but as being retainable by the holders for the purpose of using them, within a moderate time (for indefinite delay, of course, cannot be allowed), as part of the circulating medium of the country." Shute v. Robins, M. & M. 136.

pay

Presentment for payment.-Statute.] Sect. 45. "Subject to the provisions of this Act a bill must be duly presented for payment. If it be not so presented, the drawer and indorsers shall be discharged.

66

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, presentment must be made on the day it falls due" (vide sect. 14, ante, p. 350).

"(2.) 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."

66

As to when a bill is payable on demand, see sect. 10, ante, p. 342. '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. "(3.) Presentment must be made by the holder or by some person authorized to receive payment on his behalf at a reasonable hour on a business day, at the proper place as hereinafter defined, either to the person designated by the bill as payer, or to 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.) A bill is presented at the proper place:

66

(a.) Where a place of payment is specified in the bill and the bill is there presented.

"(b.) 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 pre

sented.

"(c.) 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. "(d.) 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.

"(5.) Where a bill is presented at the proper place, and after the exercise of reasonable diligence no person authorized to pay or refuse payment can be found there, no further presentment to the drawee or acceptor is required.

"(6.) Where a bill is drawn upon, or accepted by two or more persons who are not partners, and no place of payment is specified, presentment must be made to them all.

"(7.) Where the drawee or acceptor of a bill is dead, and no place of payment is specified, presentment must be made to a personal representative, if such there be, and with the exercise of reasonable diligence he can be found.

"(8.) Where authorized by agreement or usage a presentment through the post office is sufficient."

Sect. 52. (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 forthwith deliver it up to the party paying it."

By sect. 72 (3), ante p. 345, presentment of a bill payable abroad must be according to the law of the foreign country.

Presentment for payment.] Presentment must be proved, although the acceptor has become bankrupt or insolvent. Russel v. Langstaffe, 2 Doug. 514; Esdaile v. Sowerby, 11 East, 114. And, where he is dead, it must be made to a personal representative, sect. 45 (7), supra; or, if there be none, at the house of the deceased. Molloy, b. 2, c. 10, s. 34; Chitty on Bills, 9th ed., 339. See Smith v. N. S. Wales, Bank of, L. R., 4 P. C. 194, 206, 207. But, if the bill be accepted payable at a particular place, a presentment at that place, though the acceptor is dead, is enough to charge the drawer. Philpott v. Bryant, 3 C. & P. 244, and see sect. 45 (4, 7),