« السابقةمتابعة »
§ 67. it be noted: section 92. The person for whose account a bill is drawn is in England called "the third account." This section would appear to be applicable to promissory notes.
If more than one offer to pay.
A person who takes up a bill supra protest for the benefit of a particular party to the bill succeeds to the title of the person from whom, not for whom, he receives it, and has all the title of such person to sue upon the bill, except that he discharges all the parties subsequent to the one for whose honor he takes it up, and that he cannot himself indorse it over: in re Overend, Gurney & Co., ex parte Swan, L. R. 6 Eq. 344 (1868). See also ex parte Lambert, 13 Vesey, 179 (1806); Geralopulo v. Wieler, 10 C. B. 690 (1851); ex parte Wyld, 2 DeG. F. & J., 642 (1860); Deacon v. Stodhart, 2 M. & Gr. at p. 320 (1841); Baring v. Clark, 19 Pick. (Mass.) 220 (1837); Scholfield v. Bayard, 3 Wend. (N.Y) 488 (1830).
The French Code de Commerce contains provisions similar to those of the present section: Arts. 158, 159. It is there called payment by intervention. See also Pothier, Change, Nos. 113, 114, and Nouguier, §§ 1004-1009.
2. Where two or more persons offer to pay a bill for the honor of different parties, the person whose payment will discharge most parties to the bill shall have the preference: Imp. Act, s. 68 (2).
3. Payment for honor supra protest, in order to operate as such and not as a mere voluntary payment, must be attested by a notarial act of honor, which may be appended to the protest or form an extension of it: Imp. Act, s. 68 (3).
This notarial act of honor is necessary, in order to give the person who pays the rights and privileges accorded by
the present section, and especially by sub-section 5. For § 67. the form for such an act, see Appendix.
4. The notarial act of honor must be founded basis on a declaration made by the payer for honor, or his agent in that behalf, declaring his intention to pay the bill for honor, and for whose honor he pays: Imp. Act, s. 68 (4).
5. Where a bill has been paid for honor, all Liabilities parties subsequent to the party for whose honor it paid are discharged, but the payer for honor is subrogated for and succeeds to both the rights and duties of the holder as regards the party for whose honor he pays, and all parties liable to that party : Imp. Act, s. 68 (5).
If the holder is a holder in due course, or if any party to the bill subsequent to the party for whose honor the bill has been paid was a holder in due course, the payer for honor acquires their rights in this respect. Among the duties to which he succeeds is that of giving notice of dishonor Goodall v. Polhill, 14 L. J. C. P. 146 (1845).
6. The payer for honor, on paying to the holder Delivery the amount of the bill and the notarial expenses for honor. incidental to its dishonor, is entitled to receive both the bill itself and the protest. If the holder does not on demand deliver them up, he shall be liable to the payer for honor in damages: Imp. Act, s. 68 (6).
7. Where the holder of a bill refuses to receive payment supra protest, he shall lose his right of
§ 67 recourse against any party who would have been discharged by such payment: Imp. Act, s. 68 (7).
Only two sections, 68 and 69, are devoted to this subject. The former gives the holder the right to demand a duplicate of a bill lost before maturity; the latter gives the party liable, the right to indemnity when he is called upon to pay a lost bill.
The Act does not treat of the rules of evidence, by which secondary evidence is allowed in the case of a bill or note lost or destroyed.
68. Where a bill has been lost before it is of lost bill. Overdue, the person who was holder of it may
apply to the drawer to give him another bill of the same tenor, giving security to the drawer, if required, to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again:
2. If the drawer, on request as aforesaid, refuses to give such duplicate bill, he may be compelled to do so. Imp. Act, s. 69.
Before the passage of the Imperial Act this provision applied to inland bills and notes, under 9 Wm. 3, c. 17, and 3-4 Anne, c. 8. Courts of Equity had extended it to indorsers as well as to the drawer. Chalmers (p. 233) speaks of the remedy as being still very inadequate, as it gives no power to obtain an indorsement or acceptance over again, and contrasts it with the remedy given by the Continental Codes, which have elaborate provisions on the
subject. See Walmesley v. Child, 1 Vesey, sen. 341 (1749), § 68. and Rhodes v. Morse, 14 Jur. 800 (1850).
The loss or destruction of a bill does not relieve from Present
the duty of demanding payment. This should be accom- bill is lost. panied by an offer of indemnity, and if payment is refused, protest may be made on a copy or written particulars section 51, s-s. 8. "Neglect to offer indemnity to the maker or acceptor on demand of payment does not deprive the payee of his right of action, but it will prevent him from recovering costs, and will compel him to bear any special damages resulting from the neglect on his subsequent suit": 2 Daniel, § 1465; Thackray v. Blackett, 3 Camp. 164 (1812).
69. In any action or proceeding upon a bill, Action on the court or a judge may order that the loss of the instrument shall not be set up, provided an indemnity is given to the satisfaction of the court or judge against the claims of any other person upon the instrument in question. Imp. Act, s. 70.
At common law, if a negotiable bill were lost, no action. could be maintained, either on the instrument or on the consideration for it, even if it was overdue when lost: Pierson v. Hutchinson, 2 Camp. 211 (1809); Hansard v. Robinson, 7 B. & C. 90 (1827); Ramuz v. Crowe, 1 Ex. 167 (1847); Crowe v. Clay, 9 Ex. 604 (1854).
Most of the provinces had provisions similar to the present section.
When the defendant did not demand security a decree was made for plaintiff without requiring it: Abell v. Morrison, 23 Grant, 109 (1876).
The loss or destruction of the note must be proved and indemnity offered: Waute v. Robinson, 2 Rev. de Leg. 29
§ 69. (1816); Beaupré v. Burn, 2 Rev. de Leg. 31 (1821). See Carden v. Ruiter 9 L. C. J. 217 (1865); Wright v. Maidstone, 24 L. J. Ch. 623 (1855).
No indemnity is required if the bill is not negotiable: Cooley v. Dominion Building Society, 24 L. C. J. 111 (1878). See Wain v. Bailey, 10 A. & E. 616 (1839).
1. Where a note had been indorsed to an attorney's clerk and mislaid: Held, that secondary evidence of it could not be given without calling the clerk, although the attorney was called and swore to his belief of its loss: Grove v. Clarke, 5 U. C. O. S. 208 (1886).
2. When the plaintiffs declared against the drawer of a lost bill payable to plaintiff's order on a promise to pay it, but did not state any new consideration for the promise, or allege that the bill was unindorsed at the time of the loss, the declaration was held bad on general demurrer: Russell v. McDonald, 1 U. C. Q. B. 296 (1844).
3. Payee against maker. Plea, loss of the note by plaintiff before suit, and that he hath been and is unable to produce it. Replication denying the loss only, held good: Campbell v. McCrea, 11 U. C. Q. B. 93 (1853).
4. A person suing on a lost note should, before action, tender an indemnity to the maker. If he neglect this, it will be at the risk of costs to defendant: Banque Jacques Cartier v. Strachan, 5 Ont. P. R. 159 (1869); King v. Zimmerman, L. R. 6 C. P. 466 (1871).