« السابقةمتابعة »
bills and notes not payable on demand, and would provide § 52. for interest from their maturity; so that it becomes a mere question of costs, if the debtor when sued pays the money into court.
A presentment and notice of dishonor unless dispensed with are necessary to render the drawer and indorsers liable sections 45, 46, 48 and 49.
2. When a place of payment is specified in the No presentbill or acceptance, the acceptor, in the absence of place an express stipulation to that effect, is not discharged by the omission to present the bill for payment on the day that it matures, but if any suit or action be instituted thereon before presentation the costs thereof shall be in the discretion of the court:
Section 52 (2) of the Imperial Act reads: "When by the terms of a qualified acceptance 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 change in the first part of the sub-section was made Reason for in the Senate to correspond with the change made in section 19 as to an acceptance at a particular specified place; and in the latter part to meet the case of an acceptor providing funds at the proper place and the holder suing without applying there. Section 86 has a similar provision as to promissory notes.
See McIver v. McFarlane, Taylor, U. C. 113 (1824); Macaulay v. McFarlane, Rob. & Jos. Dig. 493 (1841); Rice v. Bowker, 3 L. C. R. 305 (1853); Mount v. Dunn, 4 L. C. R. 348 (1854); O'Brien v. Stevenson, 15 L. C. R. 265 (1865); Crepeau v. Moore, 8 Q. L. R. 197 (1882); Chandler v. Beckwith, 2 N. B. (Berton) 423 (1838); Ratchford v.
$ 52. Griffith, 4 N. B. (2 Kerr) 112 (1843); Biggs v. Wood, 2 Man. L. R. 272 (1884).
It would seem as if the words "express stipulation" in the clause as it now stands, would mean an express stipulation that the acceptor should be discharged if the bill were not presented on the day of maturity.
Chalmers (p. 171) applies these words in the Imperial Act, to the case where a bill by the acceptance is made payable at a particular place only, and suggests that when a bill is made payable at a particular place and there only, the position of the acceptor is for many purposes analogous to that of the drawer of a cheque, and that if he could show that he was damnified by the holder's omission to present it on the proper day, he would probably be discharged. He refers to Bishop v. Chitty, 2 Stra. 1195 (1742); Alexander v. Burchfield, 7 M. & Gr. 1061 (1842); Halstead v. Skelton, 5 Q. B. at pp. 93, 94 (1843); Mullick v. Radakissen, 9 Moore P. C. at p. 70 (1854); and Smith v. Vertue, 30 L. J. C. P. at pp. 59, 60 (1860).
It will be observed that this clause in the Canadian Act is wider in its scope than the corresponding one in the Imperial Act. The latter applies only to a qualified acceptance making a bill payable at a particular place and there only; the former to all cases where either the bill itself or the acceptance names a place of payment.
No protest 3. In order to render the acceptor of a bill
necessary. liable, it is not necessary to protest it, or that notice of dishonor should be given him: Imp. Act, s. 52 (3).
Protest or notice to the acceptor of a bill is unnecessary even if it be a foreign bill. The maker of a note is in the same position section 88, s-s. 4. The reason is that they are the persons primarily liable: Treacher v. Hinton, 4
B. & A. 413 (1821); Smith v. Thatcher, ibid, 200 (1821). § 52. See also cases under sub-section 1, ante p. 306.
4. Where the holder of the bill presents it for ment 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. Imp. Act, s. 52 (4).
Presentment for payment is made by the holder or by some person authorized to receive payment on his behalf: section 45, s-s. 3. For a definition of holder see ante, p. 27 and as to payment, section 59. See section 69 as to a lost bill.
The bill should be produced and exhibited, as the person Bill should paying has a right to it as a voucher in his account with hibited. other parties: De la Chevrotiere v. Guilmet, 9 L. N. 412 (1886); Jordan v. Coates, 7 N. B. (2 Allen) 107 (1850); Hansard v. Robinson, 7 B. & C. at p. 94, (1827); Ramuz v. Crowe, 1 Ex. at p. 174 (1847); Crowe v. Clay, 9 Ex. 604 (1854); Musson v. Lake, 4 How. (U. S.) 262 (1846).
If a bill is payable at a bank or other particular place, and is lying there on the day of maturity, no special form of presentment is necessary: Harris v. Perry, 8 U. C. C. P. at p. 409 (1858); Pullen v. Sanford, 16 N. S. (4 R. & G.) 242 (1883); Souther v. Wallace, 20 N. S. (8 R. & G.) 509 (1888); Biggs v. Wood, 2 Man. L. R. 272 (1885).
If on demand of payment the bill is not asked for and payment is refused on some other ground, or inability to pay is acknowledged, exhibition of the bill is waived: Chandler v. Beckwith, 2 N. B. (Berton) 423 (1838); Gilbert v. Dennis, 3 Metc. 495 (1842); Lockwood v. Crawford, 18 Conn. 361 (1847).
Funds in hands of drawee.
LIABILITIES OF PARTIES.
Sections 53 to 58, inclusive, treat of the liability of the several parties to a bill-the drawee, the acceptor, the drawer, the indorser-also of a stranger who puts his name upon it, and of a transferrer by delivery. The measure of damages against those who are parties to a dishonored bill is also declared in section 57.
53. A bill, of itself, does not operate as an assignment of funds in the hands of the 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. Imp. Act, s. 53 (1).
Section 53 of the Imperial Act from which the foregoing is taken, provides that it shall not apply to Scotland, and the following sub-section is added: "(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 favor of the holder, from the time when the bill is presented to the drawee." The law of France is similar to that of Scotland: Nouguier, §§ 892, 431.
An order to pay out of a particular fund is not a bill of exchange: section 3, s-s. 3. It was formerly considered in England that a cheque was in the nature of an equitable assignment of funds in the hands of the banker: Keene v. Beard, 8 C. B. N. S. at p. 381 (1860). But it was well settled before the Act of 1882, that a cheque was not an equitable assignment, but a bill of exchange drawn upon a banker, that there was no privity between the banker and the holder of the cheque, and the latter had no action even
if there were funds: Hopkinson v. Foster, L. R. 19 Eq. 74 § 53. (1874); Schroeder v. Central Bank, 34 L. T. N. S. 735 (1876). It was also held in Ontario that an unaccepted cheque was not an equitable assignment, and the holder had no action against the bank: Caldwell v. Merchants' Bank, 26 U. C. C. P. 294 (1876). In Quebec, however, it was held that a cheque was a transfer of so much of the funds of the drawer in the bank and gave the holder a right of action Marler v. Molsons Bank, 23 L. C. J. 293 (1879). In several of the United States the holder is allowed to sue on an unaccepted cheque ;--in Louisiana: Gordon v. Mulcher, 34 La. Ann. 608 (1882);-in Illinois: Union Nat. Bank v. Oceana Co. Bank, 80 Ill. 212 (1875); Springfield Ins. Co. v. Peck, 102 Ill. 265 (1882);-in Iowa: Roberts v. Austin, 26Iowa, 316 (1868);-in Missouri: Senter v. Continental Bank, 7 Mo. App. 532 (1879);—and in Kentucky: Lester v. Given, 8 Bush (Ky), 358 (1871). The English and Ontario rule will now prevail throughout Canada, as section 72 of the Act provides that "a cheque is a bill of exchange drawn on a bank," and the present section applies to cheques as well as to other bills.
The rule laid down in the section has long been recog- Bill not an nized in England as to ordinary bills: Griffin v. Weatherby, L. R. 3 Q. B. 753 (1868); Shand v. Du Buisson, L. R. 18 Eq. 283 (1874); even in case of a bill accepted payable at a banker's Yates v. Bell, 3 B. & A. 643 (1820); Moore v. Bushell, 27 L. J. Ex. 3 (1857); Hill v. Royds, L. R. 8 Eq. 290 (1869). Also in Ontario: Lamb v. Sutherland, 37 U. C. Q. B. 143 (1875); and in the United States: Carr v. Nat. Bank, 107 Mass. 45 (1871); Bank of Commerce v. Bogy, 44 Mo. 15 (1869); First Nat. Bank v. Dubuque, 52 Iowa, 378 (1879).
A letter of credit is similar in this respect to a bill of Letter of exchange Morgan v. Larivière, L. R. 7 H. L. 432 (1875);