Page images
PDF
EPUB

satisfaction.

maturity) until payment or satisfaction thereof by payment or the maker, drawee or acceptor at or after maturity, but not after such payment or satisfaction.

991

66

66

Lord Ellenborough says, "A bill of exchange is negotiable ad "infinitum, until it is paid by, or discharged on behalf of the "acceptor. If the drawer has paid the bills, it seems he may sue "the acceptor upon the bill, and if instead of suing the accep"tor, he put it into circulation upon his own indorsement only, "it does not prejudice any of the other parties who have indorsed "the bill, that the holder should be at liberty to sue the acceptor. "The case would be different if the circulation of the bill would "have the effect of prejudicing any of the indorsers.' Patteson, J., however qualifies this right of the drawer, he says, "I am of the same opinion as to the right of the drawer (to "re-issue), with this qualification only, that he must be payee as well as drawer. If the bill were payable to a third person, and "dishonored, and the drawer took it up, there would be a dis"tinction. 192 The drawer could not then re-issue." The limitation is as to the maker, drawee or acceptor after maturity; as to the right of the acceptor of a bill of exchange to re-issue it, if it has come to his possession before maturity, Pollock, C. B. says, when a bill has been created according to the custom of mer"chants as a real commercial transaction, it is part of the circu"lating medium of the country, and the acceptor after its issue, "stands with regard to a re-transfer of it to him, in the same "position as any other person. He may, indeed pay it, to "discharge it; but discounting it, is not paying it, and if he "discounts it, he may re-issue it.' A cheque may be transferred at any time, being payable on demand, it is never overdue therefore a party taking a cheque after any fixed time does not do so at his peril. (See Sec. 90.)

66

193

4

1 Callow v. Lawrence, 3 M. & S. 97 see also Woodward v. Pell, L. R. 4 Q. B. 55.

• Williams v. James, 15 Q. B. 498; S. C. 19 L. J., (Q. B.) 445.

Attenborough v. Mackenzie, 25 L. J. (Ex.) 244; see also Bur

bidge v. Manners, 3 Camp. 193;
Harmer v. Steele, 4 Exch. 1 ; S. C.
19 L. J. (Ex.) 34.

4 Rothschild v. Corney, 9 B. &
C. 388; S. C. 4 Moo. & R. 411;
but see London & C. Bk. v
Groom, 8 Q. B. D. 288.

CHAPTER V.

OF PRESENTMENT.

Presentment

61. A bill of exchange payable after sight must, for acceptance. if no time or place is specified therein for presentWhen the drawer ment, be presented to the drawee thereof for accepthow to ap affactio ance, if he can, after reasonable search, be found, by his to meet the a person entitled to demand acceptance, within a reasonable time after it is drawn, and in business hours on a business day. In default of such presentment, no party thereto is liable thereon to the person making such default.

If the drawee cannot, after reasonable search, be

mundi on present

urant & has ust.
Sustained by reas in

I want quotic
Mantify could

nois homing the

vecover.

DRR 10 Ban 346 found, the bill is dishonored.

DIR 14d470.

If the bill is directed to the drawee at a particular place, it must be presented at that place; and if at the due date for presentment he cannot, after reasonable search, be found there, the bill is dishonored.

The rules contained in this chapter are conditions precedent to the liability of parties to negotiable instruments, they treat both of the subject of presentment for acceptance and for payment. Throughout the whole chapter nothing is said as to the mode of presentment, that is to say whether it must be personally (in the sense, that the person entitled to make it must be present) or whether it may be done by means of a letter sent by a messenger, or through the post. We shall see in the chapter on Notice of Dishonor,' that the notice may be sent by post, and in England though it has not been expressly decided, that presentment by letter through the post is good,

yet the opinion of the Court was, that it was a proper mode. 1 With the exception of the instruments referred to in Secs. 61 and 62, the presentment must be by, or on behalf of the holder, and by Sec. 75, it may be made to the duly authorized agent of the drawee, maker or acceptor, thus it would seem making presentment for payment to an indorser personally, obligatory.

The provisions of this section only apply to bills of exchange payable after sight, and relate only to presentment for acceptance; "after sight" is defined in Sec. 21, and is the only instance where presentment for acceptance is required by law. The reason being that it is necessary to fix the period when it is payable and until that is fixed and arrived at, no cause of action .could arise."

By person entitled to demand acceptance.-This would ordinarily be the holder, but as that term is defined by Sec. 8 to mean a person entitled to demand payment, the use of the expression has been avoided.

To the drawee.-This must be read with Sec. 75, which allows of presentment to a duly authorized agent; for the purpose of presentment, the drawee's clerks or persons in his employ at his place of business are according to the English cases deemed agents. But it has been held, that some proof must be given, that the person to whom the presentment was made, was the drawee, or some one employed by him in his business. Thus where it was proved that plaintiff had gone to a house represented to be that of the drawee, who was a tanner, and had presented the bill to a person in the tan-yard, but it was not shown who that person was, it was held the demand of acceptance was not sufficient.3

If he can after reasonable search be found.-The expression used here is différent from that in the Sec. (76) relating to circumstances under which presentment for payment may be unnecessary, where in cl. (a) the expression due search is used. If reasonable search is made unsuccessfully, then the bill is dishonored.

Within a reasonable time after the bill is drawn, Sec. 105 must be read with this, but I think it well to quote a few cases

1 Prideaux v. Criddle, L. R. 4 Q. B. 455.

Byles on Bills, 13th ed., p.

182; Chitty on Bills, by Russell, 11th ed., p. 193.

3 Cheek v. Roper, 5 Esp. 175.

Where

to show what has been held to be within reasonable time. a bill, on London payable after sight, was granted within 20 miles of London, omission to present it for acceptance for four days after its receipt, was held not unreasonable.1 Where the plaintiff kept the bill nearly five months, owing to a fall of exchange, it was held not unreasonable. *

From the wording of Sec. 105 "regard shall be had to the nature of the instrument and the usual course of dealing with respect to similar instrument," the English rule, that presentment will be excused by putting the bill into circulation would seem applicable. Upon this Parke, B., said: "In determining the question of reasonable time for presentment, not the interests of the drawer only, but those of the holder also, must be taken into account; the reasonable time expended in putting the bill into circulation, which is for the interest of the holder is to be allowed, and the bill need not be sent for acceptance by the very earliest opportunity, though it must be sent without improper delay;"3 and again it was said, "It can never be required of the holder, instantly on receipt of the bill, under all disadvantages, to put it into circulation. To hold the purchaser bound by such an obligation would impede, if not altogether destroy, the market for buying and selling foreign bills, to the great injury, no less than to the inconvenience of the drawer himself,"

"In business hours on a business day," see Sec. 65.

Nothing is said about the place where the presentment is to be made, if none is indicated on the bill, presentment for payment we shall see, must, where possible, be made at the place of business or residence of the party to be charged (Sec. 70.)

In default of such presentment no party thereto is liable thereon to the person making such default.-From these words, the rule from Pardessus quoted by Chitty," that the holder may excuse his neglect to present, by proving that the drawer or other party, insisting on want of presentment as a defence, had no effects, in the hands of the drawee or had given no consideration for

Fry v. Hill, 7 Taunt., 397. • Mellish v. Rawdon, 9 Bing. 416.

3 Ramchurn Mullick v. Luchmeechun Radakissen, 9 Moo. P. C. 67.

4 Mellish v. Rawdon, 9 Bing., 416;

5 Chitty on Bills, by Russell, 11th ed., p. 195.

the bill, does not seem applicable. It has however been decided that the holder is bound to present, in order to render the drawer liable even though the drawer may have requested him not to do so1

Dishonor.—The section only defines dishonor in two instances, the general Sections are Secs. 76, 91 and 92.

Drawee in case of need.-No mention is made in the section or in the chapter of the necessity of presentment to the drawee in case of need, where one is mentioned, whether this is intentional or not is not clear, but according to the custom of merchants, it would seem, that the additional presentation is necessary, and it is certainly allowable, and Sec. 115 lays down that a bill in which 'a drawee in case of need' is named, is not dishonored, till it is dishonored, by such drawee. (See Sec. 7.)

62. A promissory note, payable at a certain Presentment of period after sight, must be presented to the maker promissory thereof for sight (if he can after reasonable search be found) by a person entitled to demand payment, within a reasonable time after it is made and in business hours on a business day. In default of such presentment, no party thereto is liable thereon to the person making such default.

See notes to Sec. 61.

The only difference between this and the previous section is, that the presentment must be by a person entitled to demand payment, why the word holder is not used here is not clear.

The presentment here is for sight only, and acknowledgment of such presentment is conveniently made by the maker, writing 'seen," and initialing and dating the promissory note, though this is not necessary.

66

for delibera

63. The holder must, if so required by the drawee Drawee's time of a bill of exchange presented to him for accept- tion. ance, allow the drawee twenty-four hours (exclusive of public holidays) to consider whether he will accept it.

1 Hill v. Heap, D. & Ry. 57.

« PreviousContinue »