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§ 51.

A protest ordinarily contains :-(1) An exact copy of the bill. * (2) A statement of the parties for whom and against whom the bill is protested. (3) The date of protesting and the place where protest is made. (4) A statement that acceptance or payment was demanded by the notary; the terms of the answer, if any; or a statement that no answer was given, or that the drawee or acceptor could not be found. (5) A reservation of rights against the parties liable. (6) The subscription and seal of the notary making the protest.? The protest must be stamped (see p. 361). A protest may be in duplicate or triplicate.? Words requiring a protest to be under seal were struck out in committee.

The protest must ordinarily be made by a notary public or other person authorized to act as such, but by sect. 94, post, p. 280, when the services of a notary cannot be obtained at the place where the bill is dishonoured, protest may be made by any respectable inhabitant in the presence of two witnesses. By 3 & 4 Will. 4, c. 70, solicitors in the country may be authorized by the Master of Faculties to practise as notaries. As to notaries in Ireland, see 9 Geo. 4, c. 24. In England the notarial presentment of the bill to the drawee or acceptor is almost always made by the notary's clerk. In America the validity of a protest founded on such a presentment has been doubted: see Parsons on Bills, p. 641.

(8) Where a bill is lost or destroyed, or is Protest of lost wrongly detained from the person entitled to hold non-delivery. it, protest may be made on a copy or written particulars thereof.

(9) Protest is dispensed with by any circum- Excuses for stance which would dispense with notice of dis- or delay.

non protest

1 See Brooks' Notary, 4th ed. p. 82 ; and for forms, see pp. 214–219; cf. French Code, Art. 173 ; German Exchange Law, Art. 88.

? Brooks' Notary, 4th ed. p. 82: Geralopulo v. Wieler (1851), 20 L. J. C. P. 105.

3 Cf. German Exchange Law, Art. 87 ; French Code, Art. 173.

4 Brooks' Notary, 4th ed. pp. 78 and 138 ; and Thomson, p. 310, as to Scotland.

5 Pothier, No. 145 ; Brooks' 4th ed. pp. 137 and 217. See further as to lost bills, sects. 69 and 70, post, p. 233. The particulars can usually be obtained from the bill book.

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honour. Delay in noting or protesting is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct, or negligence.' When the cause of delay ceases to operate the bill must be noted or protested with reasonable diligence.

See sect. 50 as to excuses for non-notice and delay. Compare sect. 46 as to excuses for non-presentment and delay. See also sect. 16 (2), ante, p. 40, as to indorsements waiving protest. Qu., if this sub-section incorporates sect. 48 (1), ante, p. 153, which excuses non-notice in the case of a bill dishonoured by non-acceptance which subsequently comes into the hands of a holder in due course.

Duties of holder as regards drawee or acceptor.

52. (1) When a bill is accepted generally? presentment for payment is not necessary in order to render the acceptor liable.3

The reason is that at common law the debtor is bound to seek out his creditor to pay him. The practical importance of the rule is, that the acceptor cannot avail himself of any informality in the presentment. The holder would not be likely to bring an action without first applying for payment. If he did so, the Court presumably would make him pay the costs, and deprive him of interest.: Serjeant Manning, in a note to a case he reports, suggests that if the holder were out of England during the whole of the


1 Legge v. Thorpe (1810), 12 East, 171 ; see, e.g., Campbell v. Webster (1845), 15 L. J. C. P. 4, waiver ; Rothschild v. Currie (1841), 1 Q. B. at p. 47, delay.

See sect. 19, ante, p. 46, distinguishing general and qualified accept

Rowe v. Young (1820), 2 Bligh, H. L. at pp. 467, 468, per Bayley, J. ; cf. Maltby v. Murrells (1860), 5 H. & N. at p. 823. See also the old form of declaration against an acceptor or maker in Bullen and Leake's Precedents.

* Cranley v. Hilary (1813), 2 M. & S. 120; Walton v. Mascall (1844), 13 M. & W. at p. 458, promissory note.

5 Cf. Macintosh v. Haydon (1826), Ry. & M. at p. 363, as to costs ; Pierce v. Pothergill (1835), 2 Bing. N. C. 167, as to interest.

6 Wilmot v. Williams (1844), 7 M. & Gr. at p. 1018 ; cf. Startup v. Macdonald (1843), 6 M. & Gr. at p. 624.

§ 52.

day on which the bill matured, it might be necessary to prove a demand before the acceptor could be sued.

By sect. 89 this enactment applies mutatis mutandis to the maker of a note.


(2) When by the terms of a qualified accept- Presentment. ance presentment for payment is required, the acceptor, in the absence of an express stipulation to that effect, is not discharged by the omission to present the bill for payment on the day that it matures.

The acceptor may, by the terms of a qualified acceptance, make presentment for payment a condition precedent to his liability. Thus, if a bill be accepted "Payable at the Union Bank only,” the holder must present it for payment at that bank before he can sue the acceptor. When a bill is accepted payable at a particular place and there only, the acceptor's position is for many purposes analogous to that of the drawer of a cheque. If, then, he could show that he was damnified by the holder's omission to present on the proper day, he would probably be discharged.

By sect. 87 (1) when a note is in the body of it made payable at a particular place, presentment is required to charge the maker; and by sect. 89 (2), the provisions of this sub-section would apply to that case.

(3) In order to render the acceptor of a bill No notice liable it is not necessary to protest it, or that required. notice of dishonour should be given to him.

Thus, if B. in Liverpool accepts a bill payable at a bank in London, and it is presented there and dishonoured, no

1 Smith v. Vertue (1860), 30 L. J. C. P. at p. 59, conditional acceptance ; see per Keating, J., at p. 60, as to acceptance to pay at a particular place, and see ante, p. 47.

Sect. 19, ante, p. 46 : and Rowe v. Young (1820), 2 Bligh, H. L. 391, 3 Halstead v. Skelton (1843), 5 Q. B. at pp. 93, 94, Ex. Ch.

4 Bishop v. Chitty (1742), 2 Stra. 1195; Ramchurn Mullick v. Luchmeechund Radakissen (1854), 9 Moore, P. C. at p. 70, per Parke, B.

5 Cf. Alexander v. Burchfield (1842), 7 M. & Gr. 1061, case of a cheque where bank failed.


§ 52.


Production of bill.

notice of dishonour need be given to B. The same rule applies to the maker of a note.

(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.

See “holder" defined by sect. 2, ante, p. 5; and as to payment, see further sect. 59 (1), post, p. 199. “The person who demands payment of a bill,” says Platt, B., "must produce the bill, and offer to deliver it up on payment.”3 * The acceptor paying the bill,” says Lord Tenterden, “has a right to the possession of the instrument for his own security, and as his voucher and discharge pro tanto in his account with the drawer.”4

At common law an exception to this rule was recognised in the case of a non-negotiable note.

As to the case of a lost bill or note, see note to sect. 70, post, p. 233. Giving up the bill is a concurrent condition, and not a condition precedent to payment.

German Exchange Law, Arts. 38, 39, provides that the holder must take part-payment if it be offered. In that case he may retain the bill, but must indorse upon it the amount he has received. As to production for proof or dividend in bankruptcy, see post, p. 349.

1 Treacher v. Hinton (1821), 4 B. & Ald. 413 ; cf. Rowe v. Tipper (1853), 22 L. J. C. P. at p. 137.

Sect. 89 (2), and Pearse v. Pemberthy (1812), 3 Camp. 261. 3 Ramuz v. Crowe (1847), 1 Excb. 167, at p. 174.

4 Hansard v. Robinson (1827), 7 B. & C. 90, at p. 94 ; Crowe v. Clay (1854), 9 Exch. 604, Ex. Ch. ; German Exchange Law, Art. 39 ; cf. Jones v. Broadhurst (1850), 9 C. B. at p. 182 ; and Duncan, Pox & Co. v. N. and S. Wales Bank (1880), 6 App. Cas, at p. 18. H. L., as to payment by drawer or indorser ; and Cornes v. Taylor (1854), 10 Exch. 441 ; Woodward v. Pell (1868), L. R. 4 Q. B. 55, lien for costs.

5 Wain v. Bailey (1839), 10 A. & E. 616 : Charnley v. Grundy (1854), 14 C. B. at p. 614.

§ 53.

Liabilities of Parties. 53. (1) A bill, of itself, does not operate as an Funds in assignment of funds in the hands of the drawee 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. This subsection shall not extend to Scotland.

(2) In Scotland, where the drawee of a bill has in his hands funds available for the payment thereof, the bill operates as an assignment of the sum for which it is drawn in favour of the holder, from the time when the bill is presented to the drawee.

ILLUSTRATIONS. 1. A., having 1001. at his bankers, draws a cheque on them for that sum in favour of C. The cheque is dishonoured. C. has no remedy against the bankers.?

2. B. gives A. an open letter of credit authorizing him to draw to the extent of 10,0001., and concluding parties negotiating bills under it are requested to indorse particulars on the back hereof." A. accordingly draws a bill for 5701. in favour of C., who duly indorses the particulars on the credit. B. becomes insolvent, and dishonours the bill on presentment. C. can prove for 5001. against B.'s estate.3

3. A. draws a bill on B. in favour of C., and remits funds to meet it. B. does not accept the bill, but he tells C. that he has received the funds and promises to pay the bill. B. does not pay the bill. No action on the bill can be maintained against B., but C. can sue B. for money received to his use.“

| Thompson on Bills, 2nd ed., p. 104 ; Thorburn's Bills of Exchange Act, p. 126 ; Bell's Principles, 9th ed. 88 315 and 339.

2 Schroeder v. Central Bank (1876), 34 L. T. N. S. 735.

3 Re Agra Bank (1867), L. R. 2 Ch. 391 ; cf. Ex parte Stephens (1868), L. R. 3 Ch. at p. 756 ; Union Bank of Canada v. Cole (1877), 47 L. J. C. P. 100, C. A.; and Citizens Bank v. New Orleans Bank (1873), L. R. 6 H. L 352.

Griffin v. Weatherby (1868), L. R. 3 Q. B. 753.

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