Payee or Indorsee against Drawer. 343 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 authorised 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: (c.) Where the drawee is dead presentment may be made to his personal representative: (d.) Where the drawee is bankrupt" (vide sect. 2, ante, p. 318), " presentment may be made to him or to his trustee : (e.) Where authorised 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 presentment 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." 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. 346). “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. 352. 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. 329) "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. 329), "and if he does not obtain an unqualified acceptance may treat the bill as dishonoured by non-acceptance." '(2.) Where a qualified acceptance is taken, and the drawer or an indorser has not expressly or impliedly authorised 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. 330), "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. 342, 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. 343. But by sect. 48 (1), post, p. 346, 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 24 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. In Where the payee delayed for eight months to present a bill drawn in Calcutta to the drawee at Hong Kong, payable 60 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. that case a delay of nearly 5 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 payable after sight, drawn by bankers in the country on their correspondents in London: "It does not seem unreasonable," says Ld. 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. 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. 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. 328). "(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 endorsement, in order to render the indorser liable." As to when a bill is payable on demand, see sect. 10, ante, p. 320. Payee or Indorsee against Drawer. 345 "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 authorised 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 authorised 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 : (a.) Where a place of payment is specified in the bill and the bill is (b.) Where no place of payment is specified, but the address of the "(5.) Where a bill is presented at the proper place, and after the exercise of reasonable diligence no person authorised 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 authorised 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. 323, 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), supra. Where a bill is accepted by an agent, the drawee being abroad, presentment to the agent must be proved. Philips v. Astling, 2 Taunt. 206. A bill, payable at a banker's, must be presented within banking hours; Parker v. Gordon, 7 East, 385; Elford v. Teed, 1 M. & S. 28; but, if presented after, and a servant at the banking-house returns for answer "no orders," it is sufficient; Garnett v. Woodcock, 6 M. & S. 44; Henry v. Lee, 2 Chitty, 124. Presentment at 8 p.m. at the private residence of a merchant is good. Barclay v. Bailey, 2 Camp. 527. So, at the place where the bill is made pay able (not being the banker's) between 7 and 8 p.m., though no one be there. Wilkins v. Jadis, 2 B. & Ad. 188. Presentment to a banker's clerk at the clearing-house is a presentment at the banker's. Reynolds v. Chettle, 2 Camp. 596; Harris v. Packer, 3 Tyr. 370, n. Where the bill is directed to a drawee by a certain address and accepted generally, it is enough to present it to an inmate of the house at such address, though the drawee has in the meantime removed. Buxton v. Jones, 1 M. & Gr. 83. Presentment-proof of.] A part payment (Vaughan v. Fuller, 2 Stra. 1246) or a promise to pay after the bill is due, is prima facie evidence, as an admission, that the bill was duly presented. Lundie v. Robertson, 7 East. 231; Croxon v. Worthen, 5 M. & W. 5. Presentment delayed or excused.-Statute.] By sect 46 (1.), "Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder" (vide sect. 2, ante, p. 318), "and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate presentment must be made with reasonable diligence." 66 (2.) Presentment for payment is dispensed with,— (a.) Where, after the exercise of reasonable diligence, presentment, as required by this Act, cannot be effected. The fact that the holder has reason to believe that the bill will, on presentment, be dishonoured, does not dispense with the necessity for present ment. (b.) Where the drawee is a fictitious person. (c.) As regards the drawer where the drawee or acceptor is not bound, as between himself and the drawer, to accept or pay the bill, and the drawer has no reason to believe that the bill would be paid if presented. (d.) As regards an indorser, where the bill was accepted or made for the accommodation of that indorser, and he has no reason to expect that the bill would be paid if presented. (e.) By waiver of presentment, express or implied." Dishonour by non-payment.-Statute.] Sect. 47. "(1.) A bill is dishonoured by non-payment (a) when it is duly presented for payment and payment is refused or cannot be obtained, or (b) when presentment is excused and the bill is overdue and unpaid." "(2.) Subject to the provisions of this Act, when a bill is dishonoured by non-payment, an immediate right of recourse against the drawer and indorsers accrues to the holder." Vide sects. 65 to 68, post, pp. 355, 356, as to acceptance and payment for honour. Notice of dishonour and effect of non-notice.-Statute.] Sect. 48. "Subject to the provisions of this Act" (vide sect. 50, post, pp. 348, 353), “when a bill has been dishonoured by non-acceptance or by non-payment, notice of dishonour must be given to the drawer and each indorser, and any drawer or indorser to whom such notice is not given is discharged; Provided that(1.) Where a bill is dishonoured by non-acceptance, and notice of dishonour is not given, the rights of a holder in due course," (vide sect. 29, ante, p. 322), "subsequent to the omission, shall not be prejudiced by the omission." (2.) Where a bill is dishonoured by non-acceptance and due notice of dishonour is given, it shall not be necessary to give notice of a subsequent dishonour by non-payment unless the bill shall in the meantime have been accepted." Payee or Indorsee against Drawer.-Notice of dishonour. 347 Notice of dishonour-when sufficient.-Statute.] Sect. 49. "Notice of dishonour in order to be valid and effectual must be given in accordance with the following rules: "(5.) The notice may be given in writing or by personal communication, and may be given in any terms which sufficiently identify the bill, and intimate that the bill has been dishonoured by non-acceptance or nonpayment." "(6.) The return of a dishonoured bill to the drawer or an indorser is, in point of form, deemed a sufficient notice of dishonour." 66 (7.) A written notice need not be signed, and an insufficient written notice may be supplemented and validated by verbal communication. A misdescription of the bill shall not vitiate the notice unless the party to whom the notice is given is in fact misled thereby." Notice of dishonour-when sufficient.] Proof of knowledge of dishonour is not equivalent to proof of notice. See Burgh v. Legge, 5 M. & W. 418; and Solarte v. Palmer, 7 Bing. 530; 1 N. C. 194, D. P. Repeated calls at the drawer's house without effect are not evidence of notice, but may excuse notice altogether, and should be pleaded in excuse. Allen v. Edmundson, 2 Exch. 719. If the presentment and notice of dishonour, as proved, are sufficient, the allegations in the statement of claim will be amended by the judge at the trial to meet the facts proved; as, where the presentment for payment was stated to have been to the acceptor, and notice of dishonour to the defendant, the judge may amend, by stating-the death of the acceptor, that the defendant was his executor, and a presentment to the defendant for payment; Caunt v. Thompson, 7 Ć. B. 400; or, the claim may be amended by alleging a waiver of notice; Killby v. Rochussen, 18 C. B., N. S. 357; Cordery v. Colville, 14 C. B., N. S. 374; 32 L. J., C. P. 210. cited post, p. 353. By whom notice should be given.—Statute.] By sect. 49, "(1.) The notice must be given by or on behalf of the holder" (see sect. 2, ante, p. 318), "or by or on behalf of an indorser who, at the time of giving it, is himself liable on the bill." "(2.) Notice of dishonour may be given by an agent either in his own name, or in the name of any party entitled to give notice, whether that party be his principal or not." "(3.) Where the notice is given by or on behalf of the holder, it enures for the benefit of all subsequent holders and all prior indorsers who have a right of recourse against the party to whom it is given." "(4.) Where notice is given by or on behalf of an indorser entitled to give notice as herein-before provided, it enures for the benefit of the holder and all indorsers subsequent to the party to whom notice is given." "(13.) Where a bill when dishonoured is in the hands of an agent, he may either himself give notice to the parties liable on the bill, or he may give notice to his principal." By whom notice should be given.] A bill was drawn by A., indorsed by him to B., and by him to plaintiff, in whose hands it was dishonoured; plaintiff's attorney gave notice of dishonour to A. in due time, either for plaintiff or B., but by mistake stated he applied for payment on behalf of B. (from whom he had no authority), and it was held that the notice was sufficient notwithstanding the misrepresentation. Harrison v. Ruscoe, 15 M. & W. 231. And, after a bill has in fact been dishonoured, an unequivocal notice that it has been dishonoured is good, if given by a party to the bill, though he had at the time no certain knowledge of the fact. Jennings v. Roberts, 4 E. & B. 615; |