(c) where although the presentment has been § 79 irregular, acceptance has been refused on some Waiver. other ground. 53 V., c. 33, s. 41 (2c). Imp. Act, ibid. This is on the ground of estoppel. A refusal to accept is an acknowledgment of the sufficiency of the presentment. 2. The fact that the holder has reason to believe Excuse. that the bill, on presentment, will be dishonoured does not excuse presentment. 53 V., c. 33, s. 41 (3). Imp. Act, ibid. This was the law in England before the Act: Ex parte Tondeur, L. R. 5 Eq. 165 (1867). A similar rule prevails as to presentment for payment: sec. 92 (2). 80. The drawee may accept a bill on the day its due presentment to him for acceptance, or any time within two days thereafter. of Time for at ance. accept 2. When a bill is so duly presented for accept- Dishonour ance and is not accepted within the time aforesaid, the person presenting it must treat it as dishonoured by non-acceptance. rights. 3. If he does not so treat the bill as dis- Loss of honoured, the holder shall lose his right of recourse against the drawer and endorsers. acceptance 4. In the case of a bill payable at sight or after Date of sight, the acceptor may date his acceptance thereon as of any of the days aforesaid but not later than the day of his actual acceptance of the bill. accept ance. 5. If the acceptance is not so dated, the holder Refusing may refuse to take the acceptance and may treat the bill as dishonoured by non-acceptance. VII., c. 2, s. 1. Imp. Act, s. 42. 2 E. History of Section.-In the Imperial Act a bill is to be History of treated as dishonoured if it is not accepted "within the cus- section. section. § 80 tomary time." In the Canadian draft bill the same expresHistory of sion was used. It was changed in the Commons so as to require acceptance on the day of presentment or on the next business day, which was in accordance with Canadian usage, at least in the principal cities of Ontario and Quebec. In the Senate the time was extended to two days. This would mean two business days: sec. 6. The law remained in this form until the 15th May, 1902, when it was amended in the above form. The change was made on account of the apparent clashing between this section, which expressly allowed two days to accept, and section 37, s-s. 2, which says that the holder is entitled to have the bill accepted as of the date of first presentment to the drawee for acceptance. The point was whether an acceptance as allowed by this section was a qualified acceptance which the holder could refuse to take, and which would discharge the drawer and endorsers who did. not assent thereto. The general opinion appears to have been that the legal effect of these sections as they formerly stood was to authorize the practice laid down in this section as it now stands, and such appears to have been the general commercial usage throughout Canada. On account, however, of dissent being expressed by some, the amendment of 1902 was passed to put it beyond question. In cases of urgency, say for instance, where a demand draft is attached to a bill of lading of perishable goods, and a more speedy acceptance is required, special instructions should be given, as otherwise the drawee would be justified in claiming and the party presenting the bill in granting the delay mentioned in the Act. In case of a draft on a known business house the usual practice is to leave the bill for acceptance. If it is detained by the drawee protest may be made on a copy or written particulars of the bill: sec. 120. Before the law required an acceptance to be in writing on the bill, detention beyond the time allowed by law was treated as an acceptance: Harvey v. Martin, 1 Camp. 425, n. (1807). Such is still the law in most places where parol acceptances are recognized. $81 ment. 81. A bill is dishonoured by non-acceptance,(a) when it is duly presented for acceptance, Dishonour and such an acceptance as is prescribed by Presentthis Act is refused or cannot be obtained, or, (b) when presentment for acceptance is excused Excuse. and the bill is not accepted. 53 V., c. 33, s. 43 (a) (b). Imp. Act, ibid. The rules for the due presentment of a bill for acceptance have been given in section 78. The requisites of a valid acceptance are set forth in sections 36 and 38. If a qualified acceptance is offered, see section 83 as to the rights and duties of the holder of the bill. The holder may wait two days after presentment for an acceptance; if not then obtained he must treat the bill as dishonoured: sec. 80. The circumstances which excuse presentment are given in section 79. case. 82. Subject to the provisions of this Act, when a Recourse bill is dishonoured by non-acceptance an immediate in such right of recourse against the drawer and endorsers accrues to the holder, and no presentment for payment is necessary. 53 V., c. 33, s. 48 (2). Imp. Act, ibid. The provisions of the Act to which this sub-section is subject, and which suspend the immediate right of recourse against the parties named, are those relating to acceptance and payment for honour, sections 147 to 155. If the drawer or endorser has named a referee in case of need, the holder has the option of proceeding immediately against the drawer and endorsers after the dishonour of the bill by the drawee or of resorting to the referee: sec. 37. If he applies to the referee and he accepts, the holder must await the maturity of the bill to see whether it will be paid. If after dishonour, the drawee is willing to accept, the holder may allow him to do so; but such acceptance, if the bill is payable at or after sight, should bear the date of the first presentment: sec. 37. In England the rule laid down in this sub-section has old law. long been recognized as law. See as to the drawer, Milford v. Mayor, 1 Douglas, 54 (1779); and as to the indorser, Old law. § 82 Ballingalls v. Gloster, 3 East, 481 (1803). So also in Upper Canada. In Ross v. Dixie, 7 U. C. Q. B. 414 (1850). Robinson, C.J., said: "An indorser, like the drawer, is liable the moment the holder is refused acceptance." It has been held in England that the right of action is not complete until notice of dishonour has had time to reach the parties: Whitehead v. Walker, 9 M. & W. 506 (1842); Castrique v. Bernabo, 6 Q. B. 498 (1844). In Quebec it was sufficient that the notice was sent: C. C. Art. 2298. So also in the United States: Lenox v. Cook, 8 Mass. 460 (1812); Robinson v. Ames, 20 Johns. 146 (1822); Shed v. Brett, 1 Pick. 401 (1823); Boston Bank v. Hodges, 9 Pick. 420 (1830); Watson v. Tarpley, 18 Howard (U. S.) at p. 519 (1855); Neg. Insts. Law, § 151. French law. Qualified accept ance. Assent. Under the modern French law no right of action accrues on dishonour for non-acceptance. The holder can only protest the bill and claim security from the drawer and indorsers until the maturity of the bill: Code de Com. Art. 120. Under old French law he had also to await maturity and protest for non-payment: Pothier, Change, No. 133; Preston v. Johnston, 2 Rev. de Lég. 28 (1813). 83. The holder of a bill may refuse to take a qualified acceptance, and if he does not obtain an unqualified acceptance may treat the bill as dishonoured by non-acceptance. 2. When the drawer or endorser of a bill receives notice of a qualified acceptance, and does not within a reasonable time express his dissent to the holder, he shall be deemed to have assented thereto. 53 V., c. 33, s. 44 (1) (3). Imp. Act, ibid. A qualified acceptance is one which in express terms varies the effect of the bill as drawn: sec. 38 (3). The examples there enumerated are acceptances that are conditional, partial, qualified as to time or by some of the drawees. only. The "unqualified" acceptance of this section is called a general acceptance in section 38 (2). If the drawee insists upon adding anything to a bare acceptance beyond indicating a bank or other place where he will pay, that will vary the $83 ance. terms of the bill, the holder may refuse to take it, and treat the bill as dishonoured. This has always been the law in Eng-Qualified land: Petit v. Benson, Comberbach, 452 (1697); Smith v. acceptAbbott, 2 Stra. 1152 (1741); Parker v. Gordon, 7 East, 387 (1806). Also in the Province of Quebec: "The acceptance must be absolute and unconditional, but if the holder consent to a conditional or qualified acceptance the acceptor is bound by it": C. C. Art. 2293. See also Pothier, Change, Nos. 4749. The same doctrine is recognized in the United States: Daniel, § 465; Randolph, § 621. If the holder takes a qualified acceptance he is bound by it, and does so at the risk of releasing the drawer and endorsers, save as provided in the two following sub-sections. ance 84. Where a qualified acceptance is taken, and Qualified the drawer or an endorser has not expressedly or acceptimpliedly authorized the holder to take a qualified without acceptance, or does not subsequently assent there- authority. to, such drawer or endorser is discharged from his liability on the bill: Provided that this section shall not apply to a partial acceptance, whereof Partial acdue notice has been given. 53 V., c. 33, s. 44 (2). ceptance. Imp. Act, ibid. This sub-section is said by Chalmers to introduce new law in England. He probably refers to the exception regarding a partial acceptance, as the first clause appears to have been well recognized in England before the Act of 1882: Byles (7th Ed.), p. 164; Chitty (11th Ed.), p. 207; Sebag v. Abitbol, 4 M. & S. at p. 466 (1816); Rowe v. Young, 2 B. & B. 165 (1820). A similar rule prevails in the United States: Daniel, §§ 508, 515; McEowen v. Scott, 49 Vt. 376 (1877). If the holder is willing to accept the offer, he should then give notice of its exact terms to all the parties, and state his readiness to accept the offer, if they will respectively consent: Daniel, § 510. Presentment for Payment. 85. Subject to the provisions of this Act, a bill Necessity. must be duly presented for payment. 2. If it is not so presented, the drawer and en- Result of dorsers shall be discharged. 53 V., c. 33, s. 45 (1). Imp. Act, ibid. none. |