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§ 43, or an indorser has named a referee in case of need, the holder has the option of proceeding immediately against the drawer and indorsers after the dishonor of the bill by the drawee, or of resorting to the referee: section 15. If he applies to the referee and he accepts, the holder must await the maturity of the bill to see whether it will be paid. If after dishonor, the drawee is willing to accept, the holder may allow him to do so, but such acceptance, if the bill is payable at or after sight, should bear the date of the first presentment: section 18.
In England the rule laid down in this sub-section has long been recognized as law. See as to the drawer, Milford v. Mayer, 1 Douglas 54 (1779); and as to the indorser, Ballingalls v. Gloster, 3 East 481 (1803). So also in Upper Canada. In Ross v. Dixie, 7 U. C. Q. B. 414 (1850), Robinson, C.J. said: "An indorser, like the drawer, is liable the moment the holder is refused acceptance." It has been held in England, that the right of action is not complete until notice of dishonor has had time to reach the parties Whitehead v. Walker, 9 M. & W. 516 (1842); Castrique v. Bernabo, 6 Q. B. 498 (1844). In Quebec it was sufficient that the notice was sent: C. C. Art. 2298. So also in the United States: Lenox v. Crook, 8 Mass. 460 (1812); Robinson v. Ames, 20 Johns. 146 (1822); Shedd v. Brett, 1 Pick. 401 (1823); Boston Bank v. Hodges, 9 Pick. 420 (1830); Watson v. Tarpley, 18 Howard (U. S.) at p. 519 (1855).
Under the modern French law no right of action accrues on dishonor for non-acceptance. The holder can only protest the bill and claim security from the drawer and indorsers until the maturity of the bill: Code de Com. Art. 120. Under old French law he had also to await maturity and protest for non-payment: Pothier, Change, No. 133; Preston v. Johnston, 2 Rev. de Leg. 28 (1813).
44. The holder of a bill may refuse to take a § 44. qualified acceptance, and if he does not obtain an As to qualiunqualified acceptance may treat the bill as dis- tances. honored by non-acceptance: Imp. Act, s. 44 (1).
A qualified acceptance is one which in express terms varies the effect of the bill as drawn: section 19. The examples there enumerated are acceptances that are conditional, partial, qualified as to time, or by some of the drawees only. The "unqualified" acceptance of this section is called a general acceptance in section 19. If the drawee insists upon adding anything to a bare acceptance beyond indicating a bank or other place where he will pay, that will vary the terms of the bill, the holder may refuse to take it, and treat the bill as dishonored. This has always been the law in England: Petit v. Benson, Comberbach 452 (1697); Smith v. Abbott, 2 Stra. 1152 (1741); Parker v. Gordon, 7 East 387 (1806). Also in the province of Quebec: "The acceptance must be absolute and unconditional, but if the holder consent to a conditional or qualified acceptance the acceptor is bound by it:" C. C. Art. 2293. See also Pothier, Change, Nos. 47-49. The same doctrine is recognized in the United States: Daniel, § 465; Randolph, § 621. If the holder takes a qualified acceptance he is bound by it, and does so at the risk of releasing the drawer and indorsers, save as provided in the two following sub-sections.
2. Where a qualified acceptance is taken, and If taken 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 Partial ac- 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: Imp. Act, s. 44 (2).
What is deemed assent.
This sub-section is said by Chalmers to introduce new law in England. He probably refers to the exception regarding a partial acceptance, as the first clause appears to have been well recognized in England before the Act of 1882: Byles, (7th Ed.) p. 164; Chitty, (11th Ed.) p. 207; Sebag v. Abithol, 4 M. & S. at p. 466 (1816); Rowe v. Young, 2 B. & B. 165 (1820). A similar rule prevails in the United States: Daniel §§ 508, 515; McEowen v. Scott, 49 Vt. 376 (1877). If the holder is willing to accept the offer, he should then give notice of its exact terms to all the parties, and state his readiness to accept the offer, if they will respectively consent Daniel, § 510.
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. Imp. Act, s. 44 (3).
As to what is a "reasonable time" see section 45, s-s. 2 (b).
45. Subject to the provisions of this Act, a bill payment must be duly presented for payment. If it is not so presented, the drawer and indorsers shall be discharged Imp. Act, s. 45; C. C. 2322.
The provisions of the Act which relieve from presentment of a bill for payment are the following:-section
39, s-s. 4, which allows a delay in certain cases for bills that § 45. must first be presented for acceptance; section 43, s-s. 2, which provides that a bill dishonored by non-acceptance need not be presented for payment; and section 46, which mentions the circumstances which excuse delay in presenting for payment, or dispense with it entirely.
In presenting a bill it should be exhibited: section 52, S-8. 4. See cases under that sub-section, as to a bill being at the place of payment on the day it matures. For the rules as to the presentment of a cheque, see section 73.
The consequence of not duly presenting a bill for payment is that the drawer and indorsers are discharged from their liability, not only on the bill, but also on the consideration for which it was given: Peacock v. Pursell, 14 C. B. N. S. 728 (1863); section 73. No presentment is necessary as against the acceptor, who is the primary debtor; but if the bill be payable in a specified place and be sued before presentment, the costs are in the discretion of the court section 51. See McLellan v. McLellan, 17 U. C. C. P. 109 (1866).
2. A bill is duly presented for payment which Rules as to is presented in accordance with the following inent.
(a.) Where the bill is not payable on demand, presentment must be made on the day it falls due ;
(b.) 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 usage of trade with regard to similar bills, and the facts of the particular case; Imp. Act, s. 45 (1) (2.)
Not payable on demand.-The rules as to the due date of bills not payable on demand are given in section 14. Presentment must be made on the third day of grace, unless that be a non-business day, when it must be presented on the next business day; Richardson v. Daniels, 5 U. C. O. S. 671 (1839); McLellan v. McLellan, 17 U.C.C.P. 109 (1866).
The former rule in Quebec is thus stated in C. C. Art. 2306: "Every bill of exchange must be presented by the holder, or in his behalf, to the drawee or acceptor for payment, on the afternoon of the third day after the day it becomes due, or after presentment for acceptance if drawn at sight; unless such third day falls upon a legal holiday, in which case the next day thereafter not being a legal holiday is the last day of grace. If the bill be payable at a bank, presentment may be made there either within or after the usual hours of banking." As to the hour at which presentment should be made, see notes to clause (c.) of this section. Presentment on the second day of grace is a nullity Wiffen v. Roberts, 1 Esp. 262 (1795); Mechanics' Bank v. Merchants' Bank, 6 Metc. 13 (1843); Henry v. Jones, 8 Mass. 458 (1812); also on the day after maturity unless the delay is excused: Prideaux v. Collier, 2 Stark. 58 (1817).
Where an indorser gave the holder a memorandum that a note would be good ten days after maturity, he was held liable on a presentment and protest at the end of the ten days: Burnett v. Monaghan, 1 R. C. 473 (1871).
Payable on demand.-As to what bills are payable on demand, see section 10. The modifying provision referred