§ 43. Duties as to qualified acceptances. ance is an exceptional right; and seems peculiar to English and American law. Under the continental codes the holder can only protest the bill for non-acceptance, and demand security from the drawer and indorsers. The effect of this conflict of laws does not appear to have been judicially considered. A bill which has been dishonoured by non-acceptance may subsequently be accepted (see sect. 18 (2), (3), ante, p. 45), but it seems clear that in such case it is in the holder's option to allow the bill to be accepted or not. On non-acceptance the holder has an immediate "right of recourse," that is, "resort," to the drawer and indorsers; but no right of "action" arises until he has performed the conditions precedent by giving notice of dishonour, and protesting, when necessary. As a general rule, the holder's cause of action is not complete until notice of dishonour has been received by the party sought to be charged.1 44. (1) 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 dishonoured by non-acceptance. As to what acceptances are qualified, see sect. 19, ante, p. 46. According to the continental codes, it seems that the holder cannot refuse a partial acceptance. He can only protest as to the balance. (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. 1 Cf. Dunn v. O'Keeffe (1816), 5 M. & S. at p. 289. 2 Whitehead v. Walker (1842), 9 M. & W. at p. 516; Watson v. Tarpley (1855), 20 How. at p. 519, Sup. Ct. U. S. 3 French Code, Arts. 119, 120; German Exchange Law, Arts. 25-28. 4 Castrique v. Bernabo (1844), 6 Q. B. 498. 5 French Code, Art. 124; Gerinan Exchange Law, Art. 22. 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. (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. In some trades, such as the East Indian, the practice of accepting against delivery of bills of lading is so common, that an authority to take such an acceptance might perhaps be implied. Sometimes, too, the terms of a documentary bill are such as impliedly to authorize it. Where the holder elects to take a qualified acceptance he should give notice of the qualification to prior parties, not notice of dishonour.2 Sub-sect. (3) settles a doubtful point in favour of the holder. 3 § 44. for payment. 45. Subject to the provisions of this Act a bill Presentment must be duly presented for payment. If it be not so presented the drawer and indorsers shall be discharged. For the provisions referred to, see sect. 46, which deals with excuses for non-presentment and delay, and sect. 39 (4), ante, p. 132, which deals with the special case of an unaccepted domiciled bill coming forward late. A drawer or indorser who is discharged from his liability on the bill is also discharged from his liability on the consideration therefor.1 The rules applicable to the drawer or indorser of a bill 1 Cf. Sebag v. Abitbol (1816), 4 M. & S. at p. 466. 2 Cf. Bentinck v. Dorrien (1805), 6 East, 199. 3 See subject discussed in Rowe v. Young (1820), 2 Bligh, 391, H. L. 4 Peacock v. Purssell (1863), 32 L. J. C. P. 266. § 45. Rules. At what time. apply equally to the indorser of a note1 or cheque, but they do not apply to the maker of a note, who is sometimes called the drawer: and they are modified as to time as regards the drawer of a cheque (sect. 74). According to French Code, Art. 161, a bill must be presented for payment on the day it falls due, but it seems no penalty follows the omission to present, provided the bill be duly protested on the following day: Nouguier, § 1076. Practically, then, protest is substituted for presentment for payment. Again, a distinction is drawn between the drawer and the indorsers. Omission duly to protest discharges the indorsers, but the drawer is not discharged, unless he shows affirmatively that the drawee or acceptor had funds to meet the bill.2 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.3 (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.* In determining what is a reasonable time, regard shall be had to the nature of the bill, The pro 1 Cf. Gibb v. Mather (1832), 2 Cr. & J. at pp. 262, 263, Ex. Ch. 2 French Code, Arts. 117 and 170; Nouguier, §§ 1147-1165. 3 As to calculating the due date, see sect. 14, ante, p. 34. vision is declaratory. Philpot v. Briant (1828), 4 Bing. at p. 720; French Code, Art. 161; see e.g., Wiffen v. Roberts (1795), 1 Esp. 262, second day of grace; Prideaux v. Collier (1817), 2 Stark. 58, day after maturity. Cf. Moule v. Brown (1838), 4 Bing. N. C. 266, as to a cheque cashed for the bearer. the usage of trade with regard to similar As to when a bill is in legal effect payable on demand, see sect. 10, ante, p. 29. This provision is modified by sect. 74, post, p. 247, as regards the drawer of a cheque. Compare sect. 40, as to presentment for acceptance of bill payable after sight. Under the continental codes bills payable at sight must be presented for payment within the like fixed limits of time that bills payable after sight must be presented for acceptance.1 § 45. At what time. for payment. (3) Presentment must be made by the holder Presentment 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. The acceptor's obligation is to pay the holder, that is, the By whom. person who can give a good discharge for the bill. As to presentment through the post-office, see sub-sect. (8). The person who presents a bill for payment must exhibit the bill and be ready and willing to deliver it up on receiving payment.3 If the bill be lost a copy should be presented and an indemnity tendered; but qu. as to the sufficiency of this? A protest it seems can be made on a copy: sect. 51 (8). The provision that the loss of a bill shall not be set up in an action if an indemnity be given hardly seems to meet the present case. As to the parts of a set, see sect. 71. As to non-business days, see sect. 92, post, p. 279. The Day and 1 French Code, Art. 160; German Exchange Law, Art. 31. 2 See sect. 59, and cf. Walker v. Macdonald (1848), 2 Exch. at p. 532; Cole v. Jessop (1854), 10 New York R. at p. 100. 3 Sect. 52 (4); cf. Griffin v. Weatherby (1868), L. R. 3 Q. B. at pp. 760, hour. § 45. To whom. reasonableness of the hour must depend on whether the bill is payable at a place of business or at a private house. The payor is not bound to stay at his place of business after a reasonable hour. If a bill be payable at a bank it must be presented within banking hours; if at a trader's place of business, then within ordinary business hours; 2 if at a private house, probably a presentment up to bed-time would be sufficient.3 In America presentments at 8 a.m. and 11 p.m. have been held unreasonable: Daniel, p. 448. Before the Act, it was held that if a bill was presented at an unreasonable hour, but payment was refused on some other ground, the presentment was good. Possibly the same rule might still be applied: see note, post, p. 147. Speaking generally, it is the duty of the payor to have the money ready on the appointed day at the appointed place, and if the holder after the exercise of reasonable diligence cannot find any such person there, he has done all that is required of him: see sub-sect. (5), post, p. 145. 6 Duties of Agent.-A collecting agent, is, of course, liable to his principal if he does not use due diligence in presenting a bill for payment and take the proper proceedings on dishonour. The same rule applies to a pledgee or person holding a bill as collateral security. An agent is, as a rule, responsible for the default of a sub-agent whom he employs; but in some of the American States an exception is admitted when the sub-agent is a notary, on the ground that he is a public officer.* Elford v. Teed (1813), 1 M. & S. 28; Parker v. Gordon (1806), 7 East, 385; cf. Whitaker v. Bank of England (1835), 1 C. M. & R. 750. 2 Cf. Allen v. Edmundson (1848), 2 Exch. at p. 723; Morgan v. Davison (1815), 1 Stark. 114, time 6.30 p.m.; Barclay v. Bailey (1810), 2 Camp. 527, time 8 p.m. Have not business hours changed since then? 3 Triggs v. Newnham (1825), 10 Moore, 249, time, 8 p.m.; Wilkins v. Jadis (1831), 2 B. & Ad. 188. 4 Henry v. Lee (1820), 2 Chitty, 124; Garnett v. Woodcock (1817), 6 M. & S. 44. 5 De Bergareche v. Pillin (1826), 3 Bing. 476; Wilmot v. Williams (1844), 7 M. & Gr. 1017; cf. Butterworth v. Le Dispencer (1814), 3 M. & S. 150; Startup v. Macdonald (1843), 6 M. & Gr. at p. 624. 6 Cf. Lubbock v. Tribe (1838), 3 M. & W. at p. 612; Lysaght v. Bryant (1850), 19 L. J. C. P. at p. 160, Maule, J.; and see Deverill v. Burnell (1873), L. R. 8 C. P. 475, measure of damage. 7 Peacock v. Purssell (1863), 32 L. J. C. P. 266. 8 Daniel, § 343; Parsons, p. 480. |