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“due diligence; and no matter how much time has been occu. “pied in giving time, if there has been no want of due diligence “ the notice will be in proper time.'

Where a holder obtained the address of the defendant at 5-30 P.M., on the day (Saturday) after the bill was dishonored, but did not post the notice of dishonor, till after the post had closed for the day, and the defendant did not receive it till Monday (both parties residing in the same place) it was said, “That in “calculating the time within which notice of dishonor must be "given by the holder of a bill, the point for commencement, was

not the day after the bill became due, but the day after that “on which the holder, after exercising reasonable diligence, “ was in a position to give the notice."

This must be read with Sec. 98, cl. (d).

107. A party receiving notice of dishonor, who seeks to enforce his right against a prior party, transmits the notice within a reasonable time if he transmits it within the same time after its receipt as he would have had to give notice if he had been the holder.

See ante, Sec. 95.

Reasonable time for transmitting such notice.

i Rowe v. Tipper, 13 C. B. 249 per Maule, J. ; S. C. 22 L. j. (C. P.) 135.

2 Gladwell v. Turner, L. R. 5 Ex. per Bramwell, B. p. at 61; S. C. 39 L. J. (Ex.) 31.

CHAPTER XI.

OF ACCEPTANCE AND PAYMENT FOR HONOR AND

honor.

REFERENCE IN CASE OF NEED. 108. When a bill of exchange has been noted Acceptance for or protested for non-acceptance or for better security, any person not being a party already liable thereon may, with the consent of the holder, by writing on the bill, accept the same for the honor of any party thereto.

Unless the person who intends to accept supra protest first declares, in the presence of a notary, that he does it for honor, and has such declaration duly recorded in the notarial register at the time, his acceptance shall be a nullity.

This section provides that contrary to the general rule, a party to whom a bill is not addressed, may accept it for the honor of any party thereto, provided he is not already liable thereon, (see Secs. 7 and 33); and the drawee may so accept, for his liability does not attach on the instrument, till after acceptance. Lord Tenterden says," "An acceptance for honor is conditional only: “it seems to me, that the same rule as to proof which prevails “ in the case of an acceptor for honor, in suing a party for whose “honor he accepts, must also be observed when the holder of

a bill sues a person so accepting. The result of the decision, a " to which I have alluded is that an acceptance for honor, is to "be considered, not as absolutely such, but in the nature of a “conditional acceptance.In Hoare v. Cazenove, 3 Lord Ellen

i Williams v. Germaine, 7 B. & C. 468; S. C. I Moo. 394.

2 Hoare v. Cazenove, 16 East, 391.

3 Supra.

borough said, “ It is an undertaking to pay, if the original “ drawee, upon a presentment to him for payment, should persist “ in dishonoring the bill, and such dishonor by him be notified, “by protest, to the person who has accepted for honor." The consent of the holder is necessary to an acceptance for honor. 1

The English law is that there may be any number of acceptances for honor for different parties to the bill.?

Under English law, Brooke3 contends, that the presence of the person who intends to accept for honor, is not necessary, and disputes its possibility in every instance. Under the section however, it seems clear that he must be personally present before the notary to make the declaration that he accepts for honor, in order to render his acceptance valid.

As to the notarial register in which the declaration is to be recorded, no provision is made in the Act about the obligation

on the persons appointed under Sec. 3 to keep such a register. How accept 109. A person desiring to accept for honor ance for honor must be made. must, in the presence of a notary public, subscribe

the bill with his own hand, and declare that he accepts under protest the protested bill for the honor of the drawer or of a particular indorser whom he names, or generally for honor; and such declaration must be recorded by the notary in his register.

The formality of a protest for honor as described by Nonguier, is thus summed up by Brooke. “In case of protest and "only after that, because the refusal of acceptance is not cer“ tain till then, the person who wishes to accept for honor, "l'intervenant, or it may be the drawee, presents himself to the “bailiff (notary), and declares that, for want of funds, or orders " from the drawer, he cannot accept the bill pure and simple, “but that not willing to cause dishonor to his signature, or to " that of the indorser, he accepts for honor, and signs the “declaration inserted in the protest itself.

Afterwards recover

+ Mutford v. Walcot, 1 Ld. Raymond, 575; Pillans v. Van Microp, 3 Burr. 1672.

i Jackson v. Hudson, 2 Camp.

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it is made.

“ing the instrument at the hands of the bailiff, (notary), he “aecepts the same."

110. Where the acceptance does not express for Acceptance not whose honor it is made, it shall be deemed to be specifying for

whose honor made for the honor of the drawer. 111. An acceptor for honor binds himself to all Liability of

acceptor for parties subsequent to the party for whose honor he honor. accepts to pay the amount of the bill if the drawee do not; and such party and all prior parties are liable in their respective capacities to compensate the acceptor for honor for all loss or damage sustained by him in consequence of such acceptance.

But an acceptor for honor is not liable to the holder of the bill unless it is presented, or (in case the address given by such acceptor on the bill is a place other than the place where the bill is made payable) forwarded for presentment, not later than the day next after the day of its maturity.

Under the first clause of this section, provided the rules contained in the second clause, have been complied with, the liability of an acceptor for honor is similar to that of an indorser, he is liable to all parties to the bill who take it subsequent to his acceptance and has a right to charge all prior parties. By the second clause, of the section presentment must be made to the acceptor for honor, according to the rules in Chapter V, and the time within which such presentment must be made is fixed absolutely.

112. An acceptor for honor cannot be charged When acceptor unless the bill has at its maturity been presented to be charged. the drawee for payment, and has been dishonored by him, and noted or protested for such dishonor.

The case upon which the section is founded is Hoare v. Cazenove,' there Lord Ellenborough in his judgment says, “The

1 16 East, 391 ; see also Wil- 468; S. C. 1 Moo. & R. 394. liams y. Germaine, 7 B. & C.

Payment for honor.

reason of the thing, as well as the strict law of the case, seems “to render a second resort to the drawee proper, when the unac

cepted bill still remains with the holder : for effects often “ reach the drawee, who has refused acceptance in the first "instance, out of which the bill may and would be satisfied, if

presented to him again, when the period of payment had “ arrived. And the drawer is entitled to the chance of the benefit “ to arise from such second demand, or at any rate to the benefit of that evidence, which the protest affords, that the demand “ has been duly made without effect, as far as such evidence “may be available to him for purposes of ulterior resort.”

113. When a bill of exchange has been noted or protested for non-payment, any person may pay

the same for the honor of any party liable to pay the same, provided that the person so paying has previously declared before a notary public the party for whose honor he pays, and that such declaration has been recorded by such notary public.

Under this section it is to be observed that the holder has not, as he has in the case of accepance for honor, any option, but must receive payment if offered, and Chalmers,' lays it down on the authority of Nouguier, that a holder who refuses to receive payment would perhaps lose his recourse against all parties whom such payment would have discharged. The protest must always precede the declaration and payment. Thus where the defendant in Jamaica, drew four bills on W. and Co. in London, at four months after sight, which were duly accepted and noted for non-payment at their due date 30th July. The plaintiff paid the bills for the honor of the defendant, the drawer, and sent notice of having done so to him by the next Mail. No protest was made for non-payment until May in the following year, and purported to have been made before the payment was made by the plaintiff. In an action against drawer for money paid, it was decided, that such a payment could not bind the defendant, or subject him to liability to refund; for that the custom of merchants clearly was, that a formal protest for non-payment should be made, before the payment supra protest, for the honor

i Chalmer's Digest of Bills of Exchange, 2nd ed., Art. 243.

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