behalf of the holder to the drawee or to some § 41. See "holder" defined by sect. 2, ante, p. 5. He is not By whom. necessarily the lawful holder. In an unreported case, in December, 1876, the Court of Appeal dissolved an injunction restraining the drawee from accepting a bill where the holder had obtained it by fraud. The holder need not present personally. Bills are constantly forwarded, unindorsed, to an agent for him to procure acceptance. The agent is bound to exercise due diligence in presenting. By German Exchange Law, Art. 18, mere possession authorizes the possessor to present for acceptance. "Ce n'est pas uniquement le porteur qui a qualité pour requérir l'acceptation: cette faculté appartient encore à celui qui en est seulement détenteur: "Nouguier, § 462. The presentment, if not made to the drawee, must be To whom. made to some one authorized to receive bills for acceptance. Thus, presentment to a servant who opened the door would not be sufficient; and if a bill is domiciled for payment at a bank, presentment at the bank would not suffice. Putting a bill in the bill box, or giving a bill to a clerk in the office in the usual way, is, of course, a presentment to the drawee. As to post-office, see clause (e). Reasonable diligence must be used to find the drawee or some person authorized to act for him. When the drawee is a trader it is clear that presentment should be made to him at his place of business if possible. hour. As to non-business day, see sect. 92, post, p. 279. The Day and Bank Holidays Act, 1871, § 2, provides that when the day on which a bill should be presented for acceptance is a bank holiday, it is to be presented on the next business day. "Reasonable hour," in the case of a trader, means business-hours, and in the case of a banker banking hours.5 1 Cf. Morrison v. Buchanan (1833), 6 C. & P. 18. 2 Bank of Van Diemen's Land v. Victoria Bank (1871), L. R. 3 P. C. at p. 542; Nouguier, § 462. 3 Cheek v. Roper (1804), 5 Esp. 175. 4 Chitty on Bills, 11th ed. p. 196; Netherlands Code, Art. 176. 5 Cf. Parker v. Gordon (1806), 7 East, 335; Elford v. Teed (1813), 1 M. & S. 28, and note to sect. 45 (3), post, p. 143. § 41. Before maturity. Two or more drawees. Drawee dead. Drawee bankrupt. A bill should clearly be presented for acceptance before maturity. It may be accepted when overdue, see sect. 18; but except in the case provided for by sect. 39 (4), i.e., domiciled bill arriving late, such acceptance does not preserve or revive the liability of the drawer and indorsers. In the case of a bill which is due or payable on demand, presentment for acceptance is merged in presentment for payment. When a bill is presented for payment, the drawee, instead of paying it, often accepts it payable at his bankers. This is, in effect, a kind of payment by cheque,* which the holder perhaps might refuse to take. In New York it has been held that if a bill payable after date be presented on the day it is due and dishonoured, it is immaterial whether it is treated as dishonoured by nonacceptance or non-payment. Considering the difference in the rules which govern the two kinds of presentment, this might have important consequences. (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: This sub-section may give rise to a difficulty if one of the drawees refuses to accept, for by sect. 19 (2) (e) an acceptance which is not the acceptance of all the drawees is a qualified acceptance. As to the consequences of a qualified acceptance, see sect. 44, post, p. 140. 4 (c) Where the drawee is dead presentment may 1 O'Keefe v. Dunn (1815), 6 Taunt. at p. 307; Nouguier, § 456. 2 Cf. Bishop v. Chitty (1742), 2 Stra. 1195. 3 Plato v. Reynolds (1863), 27 New York R. 586. 4 Before this enactment the law on this point was very doubtful. Smith v. New South Wales Bank (1872), 8 Moore, P. C. N. S. at pp. 461, 462. Now the holder has an option: see sub-sect. (2) (a) post. See "bankrupt" defined by sect. 2, ante, p. 4. the holder's option clear. Sub-sect. (2) (a) makes (e) Where authorized by agreement or usage, § 41. a presentment through the post office is suffi- Post office. cient. This enactment gives effect to the recognised practice among English merchants. The practice is not recognised by the continental codes. (2) Presentment in accordance with these rules Excuses for is excused, and a bill may be treated as dis- non-presenthonoured 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:2 (c) Where, although the presentment has been irregular, acceptance has been refused on some other ground.3 (3) The fact that the holder has reason to believe that the bill, on presentment, will be dishonoured does not excuse presentment. This is declaratory. It, of course, only applies to cases where presentment is obligatory. Comparing presentment for acceptance with presentment for payment, it is clear that the two cases are governed by somewhat different considerations. Speaking generally, presentment for acceptance should be personal, while pre 1 See "bankrupt” defined by sect. 2, ante, p. 4; and as to persons not having capacity to contract by bill, see sect. 22, ante, p. 60. 2 This is probably declaratory. Cf. Smith v. New South Wales Bank (1872), 8 Moore, P. C. N. S. at pp. 461-463; also sect. 46 (2), and sect. 50 (2). 3 This is, perhaps, new law, and is important, having regard to the next sub-section. 4 Ex parte Tondeur (1867), L. R. 5 Eq. at p. 165; Robinson v. Ames (1822), 20 John. at p. 149, New York; cf. sect. 46 (2), and sect. 50 (2). ment for acceptance. § 41. Non-accept auce after time for sentment for payment should be local. A bill should be presented for payment where the money is. Any one can then hand over the money. A bill should be presented for acceptance to the drawee himself, for he has to write the acceptance; but the place where it is presented to him is comparatively immaterial, for all he has to do is to take the bill. Again (except in the case of demand drafts), the day for payment is a fixed day; but the drawee cannot tell on what day it may suit the holder to present a bill for acceptance. These considerations are material as bearing on the question whether the holder has used reasonable diligence to effect presentment. 42. When a bill is duly presented for acceptcustomary ance, and is not accepted within the customary consideration. 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 indorsers. This section was much discussed in committee, and was eventually reduced to its present vague form, as the bankers and merchants took different views as to the exact rights of the parties. The probable effect of it as regards trade bills, is this: If a bill, left for acceptance within business hours one day, is not accepted before the close of business hours on the next day, it must be noted for non-acceptance, or otherwise treated as dishonoured. As to protest for non-delivery, see sect. 51 (8), post, p. 175. The law is usually stated as follows:-The person who presents a bill of exchange for acceptance must deliver it up to the drawee if required so to do. The drawee is entitled to retain it for twenty-four hours, but after the expiration of this time he must re-deliver it accepted or unaccepted. In reckoning the twenty-four hours nonbusiness days must be excluded.2 In a case in 1818, Bayley, J. says, "When a bill is, in 1 Bank of Van Diemen's Land v. Victoria Bank (1871), L. R. 3 P. C. at pp. 542, 543; Story, § 237; French Code, 125; Nouguier, § 537. 2 Ibid. see at pp. 546, 547, as to the effect of a short day-e.g., Saturday; and see sect. 92. the usual course of business, left for acceptance, it is the duty of the party who leaves it to call again for it, and to inquire whether it has been accepted or not. It is not the duty of the other person to send it to him, unless there is a usual course of dealing between the individuals concerned so to do." He then proceeds to decide what the act now makes clear, viz., that the destruction of the bill by the drawee does not amount to an acceptance. The holder's remedy is an action for damages. § 42. 43. (1) A bill is dishonoured by non-accept- Dishonour by ance non-acceptance and its (a) when it is duly presented for acceptance, consequences. and such an acceptance as is prescribed by this Act 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. As to the presentment for acceptance, see sect. 41; as to the requisites of a valid acceptance, see sects. 17 and 19. By sect. 44 (1), the holder has an option to take or refuse a qualified acceptance. See also last section. As to excuses for not presenting for acceptance, see sect. 41 (2). For the provisions referred to in sub-sect. (2), see sect. 65, post, p. 226, as to acceptance for honour. According to English law the holder is under no obligation to resort to the case of need, if such there be; but if he does so, and obtains an acceptance for honour, his right of recourse against the drawer and indorsers is suspended. The effect of this suspension on the Statute of Limitations has not been considered. The immediate right of recourse arising on non-accept 1 Jeune v. Ward (1818), 1 B. & Ald. 653, at p. 659. |