2. It is in the option of the holder to resort to § 33 the referee in case of need or not, as he thinks fit. Option. 53 V., c. 33, s. 15. Imp. Act, ibid.

This is given by Chalmers as new law. He has reference probably to the last sentence, which settles a point that before the Act had not been decided in England. According to Pothier (Change, No. 137) it had been a disputed point in France whether it was obligatory on the holder to present a bill to the referee in the event of its being dishonored by the drawee. The Civil Code of Quebec made it compulsory. If the bill be unaccepted and there be a drawee au besoin (referee in case of need), presentment must be made in like manner to him also: Art. 2306. "In modern France if the drawee au besoin be named by the drawer, the bill, if dishonored, must be presented to him; if he be named by an indorser it is at the option of the holder": Nouguier, §§ 249, 250. Before a bill is presented to the referee in case of need for payment it must have been protested for nonpayment: sec. 117; or at least have been noted for nonpayment: sec. 118.

If the bill has been drawn or endorsed abroad it would be prudent to resort to the referee in case of need in every case of dishonor, as many foreign countries make it compulsory. The American Negotiable Instruments Law is similar to the Imperial and Canadian Acts: § 215.

34. The drawer of a bill, and any endorser, may Stipulainsert therein an express stipulation,

tions.

(a) negativing or limiting his own liability to the Limiting. holder;

(b) waiving, as regards himself, some or all of Waiving holder's duties. 53 V., c. 33, s. 16.

The ordinary liability of the drawer to the holder is that if the bill be dishonored and due notice given he will compensate the latter: sec. 130. He is in a sense after acceptance surety for the acceptor. The ordinary liability of an endorser to the holder is similar; and he is in the nature of a new drawer: sec. 133. The drawer may stipulate that he shall not be liable on the bill, and then the holder must look

rights.

Express stipulations.

§ 34 alone to the acceptor, and to any endorser who may be liable to him. Or the drawer may limit his liability as to amount or otherwise, and any endorser may do the same. In practice it is not common for drawers to make such a stipulation; endorsers frequently do so. The form in which the latter generally negative liability is by writing before their endorsement the words "sans recours," or "without recourse." For all practical purposes an endorsement "without remay be placed upon the same footing as a note payable to bearer or transferred by delivery. The party so making the transfer does not thereby incur the obligation or responsibility of an endorser: Dumont v. Williamson, 2 U. C. L. J. 219 (1866); Goupy v. Harden, 7 Taunt. 163 (1816); Rice v. Stearns, 3 Mass, 224 (1807); Ticonic Bank v. Smiley, 27 Me. 225 (1847); Hailey v. Falconer, 32 Ala. 536 (1858); Hannum v. Richardson, 48 Vt. 508 (1875).

Waiving

holder's duties.

course

A customer of a bank who endorses a cheque "without recourse" and deposits it for collection with the bank, on receiving the money and paying it over to the prior endorser who had forged the endorsement of the payee, is liable to refund the money to the bank: Bank of Ottawa v. Harty, 12 O. L. R. 218.

One who is not the holder of a bill but who simply puts his name on the back of it, and is only a quasi-endorser, may limit his liability by writing "sans recours" after his signature: Wakefield v. Alexander, 17 T. L. R. 217 (1901).

The duties of a holder of a bill to a drawer or endorser are to present it for acceptance and payment, or for payment only, according to its tenor, and in case of dishonor to give due notice to the drawer and endorsers, as provided in secs. 95 to 108 inclusive. The drawer or any endorser may relieve the holder from these obligations. The usual form f effecting this is by using the words "return without protest," "protest waived," or "notice of dishonor waived." In the United States it has been held that where the waiver is embodied in the instrument itself, it enters into the contract of every party who signs it: Bryant v. Merchants' Bank, 8 Bush. (Ky.) 43 (1871); Bryant v. Lord, 19 Minn. 397 (1872); Parshley v. Heath, 69 Me. 90 (1879); Pool v. Anderson, 116 Ind. 94 (1888); Daniel, §§ 1092, 1093. Such is

holder's

also the law of France: Cass. 9th Nov. 1870, Dalloz, 70, 1, § 34 350. Our statute would appear to contemplate the restriction of the waiver to the drawer or endorser who expressly Waiving waives any of the holder's duties "as regards himself." duties. Waiver by a curator in Quebec has been held to bind the insolvent endorser who had assigned: In re Boutin, Q. R. 12 S. C. 186 (1897); the contrary was held in Denenberg 7. Mendelssohn, Q. R. 23 S. C. 128 (1903); Molsons Bank v. Steel, Q. R. 23 S. C. 316 (1903).

Acceptance and Interpretation.

ance

35. The acceptance of a bill is the signification Acceptby the drawee of his assent to the order of the defined. drawer. 53 V., c. 33, s. 17 (1). Imp. Act, ibid.

When the drawee writes his name on the bill and delivers it or gives notice he becomes the acceptor and his act is irrevocable: sec. 39. No one can accept a bill except the drawee or an authorized agent, save the referee in case of need, or an acceptor for honor: secs. 33 and 147. Before the law was so strict in requiring an acceptance to be signed by the acceptor, there was also laxity in other respects as will be seen from some of the illustrations given below.

In some instances where a bill is drawn upon the officer of a corporation it is frequently difficult to decide whether the drawee is the corporation or the officer individually. As will be seen from some of the illustrations below the tendency has been to hold the officer personally liable. The maker of a promissory note usually corresponds to the acceptor of a bill. The decisions regarding promissory notes made by officers of corporations show that personal liability is less readily presumed than in the case of bills. The difference arises largely from the rule of the present section that it is the drawee who must accept the bill.

Where a bill is addressed to a firm it is the same in effect as though addressed to all the partners, and the signature of a firm's name by a partner or agent is equivalent to his signing the names of all the partners: sec. 132.

The acceptor of a bill, by accepting it, engages that he will pay it according to the tenor of his acceptance: sec. 128.

$ 35

Acceptance of bills.

It will be borne in mind that the provisions of this and the following sections apply only to acceptances in Canada. By sec. 162 the validity of the form of an acceptance is determined by the law of the country where it takes place.

ILLUSTRATIONS.

1. Upon a bill addressed to "P. C. De Latre, Pres. N. D. & H. Co.," and accepted thus,-" Accepted, P. C. De Latre, Pres. N. D. & H. Co.," the acceptor was held personally liable to the payees: Bank of Montreal v. De Latre, 5 U. C. Q. B. 362 (1848).

2. Defendant accepted a bill drawn upon him as treasurer of the Wolfe Island Railway and Canal Co. thus,-" Accepted, W. A. Geddes, Treas., W. I. R. & C. Co.," and affixed the company's seal. Held, that he was personally liable: Foster v. Geddes, 14 U. C. Q. B. 239 (1856).

3. Upon a bill drawn by the secretary of a company upon its president and accepted thus,-" Accepted, Geo. Macbeth, President," both were held personally liable: Bank of Montreal v. Smart, 10 U. C. C. P. 15 (1860).

4. On a bill addressed to "James Glass, Sec. R. G. M. Co.," and accepted thus,-" Accepted, the R. G. M. Co., per Jas. Glass, Sec.." held that the secretary was not the acceptor or personally liable: Robertson v. Glass, 20 U. C. C. P. 250 (1869).

5. A bill was addressed "M. H. Taylor, Tr. C. S. Ry. Co.," and accepted thus,-" Accepted, M. H. Taylor, Tr." Held, that he was personally liable as acceptor to an indorsee who took it as the bill of the company: Laing v. Taylor, 26 U. C. C. P. 416 (1876).

6. A bill addressed "to the Pres. Midland Railway was accepted thus,-" For the Midland Railway of Canada, accepted. H. Read, Sec., Geo. A. Cox, President." Held, that the president was personally liable as acceptor: Madden v. Cox, 5 Ont. A. R. 473 (1880).

7. Defendant accepted a bill "as executor of estate J. P." Plaintiff was holder for value without notice. A defence that defendant was liable only as executor was struck out: Campbell v. Mackay, 24 N. S. 404 (1892).

8. A bill addressed to "M. & McQ.," intended for M. McQ. & Co., was accepted by the manager of the latter in the name of "M. & McQ." The firm of M. McQ. & Co. were held not liable as acceptors: Quebec Bank v. Miller, 3 Man. 17 (1885).

9. A bill drawn on "The Board of Managers Presbyterian Church." an unincorporated body, was accepted as follows:-" Accepted, D. McLean, Chairman, A. G. Potter, Treasurer." There

being evidence that they were respectively the chairman and treasurer of the board, they were held personally liable: McDougall v. McLean, 1 Terr. L. R. 30 (1893).

$35

Accept

ance of

10. Where a person to whom a bill is not addressed writes an bills. acceptance upon it (not as acceptor for honor) he is not liable as an acceptor: Jackson v. Hudson, 2 Camp. 447 (1810); Polhill v. Walter, 3 B. & Ad. 114 (1832); Davis v. Clarke, 6 Q. B. 16 (1844) ; Steele v. McKinlay, 5 App. Cas. 754 (1880).

11. A bill addressed to the "Directors of the B. Co.," is accepted by two directors and the manager. The latter is not liable as an acceptor: Bult v. Morrell, 12 A. & E. 745 (1840).

12. A bill addressed to a firm is accepted by a partner in his own name. He is personally liable as an acceptor: Owen v. Van Uster, 10 C. B. 318 (1850). If he accept in the firm name and add his own it does not make him separately liable to an indorsee : Re Barnard, 32 Ch. D. 447 (1886).

13. A bill addressed to a partner is accepted by him in the firm name. He is personally liable as the firm name is a short form of the partners' names: Nicholls v. Diamond, 9 Ex. 154 (1853).

14. A bill is addressed to the S. S. P. Co.. the proper name being the S. S. P. Co., Limited. It is accepted by "J. M., Sec. to the Co." This is not the acceptance of the company, but under the Companies' Act, J. M. is personally liable: Penrose v. Martyr, E. B. & E. 499 (1858); Atkins v. Wardle, 58 L. J. Q. B. 377 (1889).

15. A bill addressed "to the joint managers of the Royal M. M. Association," is accepted thus." Accepted, J. J., W. S., as joint managers of the Royal M. M. Association." Held, that they were personally liable as acceptors: Jones v. Jackson, 22 L. T. N. S. 828 (1870).

16. A bill addressed to the "B. Co." is accepted thus,-“ J. S. and H. T., directors of the B. Co." This is an acceptance by the company and not by the directors personally: Okell v. Charles, 34 L. T. N. S. 822 (1876).

17. A bill addressed to "J. B., agent of the L. Co.," is accepted thus,-"Accepted on behalf of the company, J. B." He is personally liable as acceptor: Herald v. Connah, 34 L. T. N. S. 885 (1876); Mare v. Charles, 5 E. & B. 978 (1856).

18. A bill was drawn on a firm in liquidation, and the agent who was winding it up accepted it for his own purposes, in the name of one of the former partners, and in his own. Held, that the former partner was not liable: Odell v. Cormack, 19 Q. B. D. 223 (1887).

19. A bill drawn on Gen. L. W. Matthews, President of the Sultan of Zanzibar's Government, was accepted thus, "L. W. Matthews, First Minister of the Zanzibar Government." Held tha these added words did not exempt from personal liability: v. Matthews, 10 T. L. R. 138 (1893).

Forwood