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he makes a part payment on account of the amount due on the instrument,

or promises to pay the amount due thereon in whole or in part,

or otherwise waives his right to take advantage of any default in presentment for payment;

(d) as against the drawer, if the drawer could not suffer damage from the want of such presentment.

This section contains exceptions to Sec. 64; and would seem to abolish the English rule, that an attempt in the cases mentioned, to make a presentment for payment should be made, and then for the Court to decide whether such attempt should be held sufficient, by making it incumbent on the Court, in the event of such circumstances being proved, to hold the instrument dishonored, and the parties thereto not discharged from their liability thereon. Before quoting the authorities on which the cases set out in the section are based, it is well to notice that according to English Law, other instances have occurred, in which non-presentment or late presentment have been held good, and sufficient to keep alive liability on the instrument. Thus no provision is made in the section for excusing presentment, where it becomes impossible, as from the country or place in which the presentment should be made, being in a state of blockade, as Paris in the late Franco-Prussian war; so where a bill was accepted payable in Paris on the 5th October 1870, and the French Government in consequence of the war enlarged the time for payment of bills falling due, and presentment was made within such enlarged time, such presentment was held good ;' or when the holder just before the maturity of the bill dies suddenly ;or by reason of delay caused by the postal authorities, (see Sec. 94, by which miscarriage of a notice of dishonor in the post, excuses the delay.) The omission from the section of this class of cases may perhaps be intentional, for we learn from the speech of the Honorable. Mr. Stokes when presenting the 5th Report of the Select Committee, That the bill does

Rouquette v. Overman, L. R. 10 Q. B. 525; see also Patience v, Townely, 2 Sm. 223.

· Rothschild v. Currie, 1 Q. B. 43.

not deal exhaustively with the subject. But the bill, the Contract Act (to which it is a Supplement), and the Evidence Act, taken together, would supply rules for the disposal of all questions that ordinarily arise in British India as to the rights of parties to negotiable instruments.” Section 56 of the Contract Act, which is as follows : “ An agreement to do an act impossible in itself is void. A contract to do an act which after the contract is made becomes 'impossible, or by reason of some event which the promisor could “not prevent, unlawful, becomes void when the act becomes “impossible or unlawful,” will probably be held applicable.

(a) The expression used here prevents, would seem to mean some active action, disabling the holder from making presentment, and it has been held in England, that the fact of the makers of a note having become insolvent, and wholly declining to pay any of their notes, would not relieve the holders of their notes from their obligation to make due presentment thereof."

(a) para. 2.—Though by Sec. 70 presentment for payment of a bill of exchange or promissory note, may be made either at the place of business or residence of the maker, drawee or acceptor, presentment will only be excused if the place of business is closed. As to what is closing a place of business, it has been held that the shutting up of a bank, in such a manner that any demand made there would be inaudible, is a refusal to pay.'

(a) para. 3.—This is an exception to Sec. 69. Presentment at the place specified is sufficient, even though the acceptor may have died ;3 (see notes to Sec. 75); where in an action by the indorsee against the drawer of a bill accepted payable at 15, Godliman Street, Doctor's Commons, proof that the house was shut up,

and on the house bell being rung, no one was found to give an answer, the presentment was held sufficient.

(a) para. 4.-The expression due search here, would seem equivalent to the reasonable search mentioned in Secs. 61 and 62, to the notes on which and those on Sec. 98, the reader is referred.

(6) From the wording of the next clause, it would seem that the agreement here referred to, must be one entered into before

4

1 Bowes v. Howe, 5 Taunt., 30. ? Howe v. Bowes, 16 East, 112.

3 Philpot v. Bryant, 3 C. & P. 244; S. C. 4 Bing. 717.

4 Wilkins v. Jadis, 2 B. & Ad.

188; S. C. 1 Moo. & R. 41 ; see also Hine v. Allely, I N. & M. 433; S. C. 4. B. & Ad. 624; Barclay v. Bayley, 2 Camp. 527; Buxton v. Jones, i M. & Gr. 86.

the maturity of the instrument, and of course, would only be applicable to the party entering into it: (see post, notes to Sec. 98.) As to the remaining clauses of the section, the reader is referred to the notes on Sec. 98, (relating to when notice of dishonor is unnecessary). It is however to be remarked, that under this section part payment or a promise to pay in part, will excuse non-presentnient, while by clause (g) of Sec. 98, there must be an unconditional promise to pay the amount due on the instrument. Familiar instances of the cases referred to in clause (d) are those of an accommodation bill ;and the case of a cheque, which the drawer knows he has no funds with his Banker to meet.

177. When a bill of exchange, accepted payable at a specified bank, has been duly presented there for payment and dishonored, if the banker so negligently or improperly keeps, deals with or delivers back such bill as to cause loss to the holder, he must compensate the holder for such loss.

This section, the Select Committee in their Report of the 27th May 1878, admit, belongs more properly to the Law of Torts, but recommend its retention here till the Law of Torts is codified. It is apparently founded on the case of Warwick v. Rogers. 3

Liability of Banker for negligently dealing with bill presented for payment.

3

1 Saul v. Jones, i E. & E. 59; S. C. 28 L. J. (Q. B.) 37:

· Wirth v. Austen, L. R. 10 C. P. 689.

5 M. & Gr. 340; see also Novelli v. Rossi, 2 B. & A. D. 757; Wilkinson v. Johnson, 3 B. & C. 428.

CHAPTER VI.

OF PAYMENT AND INTEREST.

ment should be

78. Subject to the provisions of section eighty- To whom paytwo, clause (c), payment of the amount due on a pro- made. missory note, bill of exchange or cheque must, in order to discharge the maker or acceptor, be made to the holder of the instrument.

This must be read with Secs. 8, 10, 58 and 82 (c). 179. When interest at a specified rate is expressly Interest when

rate specified. made payable on a promissory note or bill of exchange, interest shall be calculated at the rate specified, on the amount of the principal money due thereon, from the date of the instrument, until tender or realization of such amount, or until such date after the institution of a suit to recover such amount as the Court directs,

Under this section, interest when the rate is specified will be chargeable on all instruments, from their date.?

We have seen that a date though an essential, is not a necessary part of a negotiable instrument. Hence for the purpose of claiming interest evidence will be admissible to show the date on which the instrument was made or drawn. By Sec. 117if a negotiable instrument bears a date, the presumption is, that it was made or drawn on that date. It will run till tender or realization, or antil such date after institution of a suit as the Court directs.s

1 Doman v. Dibdin, Ry. & M. 381; Richards v. Richards, 2 B.

2 Dent v. Dunn, 3 Camp. 296.

3 Sec. 209, Civ. Pro. Code, (App.)

& Ad. 447

Interest when 80. When no rate of interest is specified in the mediate specie instrument, interest on the amount due thereon shall,

except in cases provided for by the Code of Civil Procedure, Section 532, be calculated at the rate of six per centum per annum, from the date at which the same ought to have been paid by the party charged, until tender or realization of the amount due thereon, or until such date after the institution of a suit to recover such amount as the Court directs.

Explanation.- When the party charged is the indorser of an instrument dishonored by non-payment, he is liable to pay interest only from the time that he receives notice of the dishonor.

Sec. 532 of the Civil Procedure Code is set out in the appendix. From the date at which the same ought to have been paid by the party charged, this will ordinarily be the date of its maturity (see ante, Sec. 22.)

The explanation, draws a distinction, which the English Law does not recognise. There, the only party chargeable with interest from the maturity of the instrument is the drawee or acceptor. Lord Mansfield says : “ The drawer cannot by inspiration find out who is the holder, and till he finds out, he cannot pay the bill. When he has found out, he is bound to pay the bill within a reasonable time. If he does not, he is liable to damages for not performing his contract; those damages are the interest on the bill.” 1 From the wording of the explanation it would seem that an indorser, who under the provisions of Sec. 98 is not entitled to notice of dishonor, can never be made liable to pay

interest. Delivery of 81. Any person liable to pay, and called upon by payment, or in the holder thereof to pay, the amount due on a prodemnity in case of loss.

missory note, bill of exchange or cheque is before payment entitled to have it shown, and is on payment entitled to have it delivered up, to him, or, if

1 Walker v. Barnes, 5 Taunt., 240.

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