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v. Bowker, 3 L. C. R. 305 (1853); Mount v. Dunn, 4 L. C. R. 348 (1854); O'Brien v. Stevenson, 15 L. C. R. 265 (1865); Crepeau v. Moore, 8 Q. L. R. 197 (1882); Chandler v. Beckwith, 2 N. B. (Berton) 423 (1838); Ratchford v. Griffith, 4 N. B. (2 Kerr) 112 (1843); Biggs v. Wood, 2 Man. 272 (1885).

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$ 93

stipula

It would seem as if the words "express stipulation" in Express the clause as it now stands, would mean an express stipula- tion." tion that the acceptor should be discharged if the bill were not presented on the day of maturity.

Chalmers (p. 180) applies these words in the Imperial Act to the case where a bill by the acceptance is made payable at a particular place only, and suggests that when a bill is made payable at a particular place, and there only, the position of the acceptor is for many purposes analogous to that of the drawer of a cheque, and that if he could show that he was damnified by the holder's omission to present it on the proper day, he would probably be discharged. He refers to Bishop v. Chitty, 2 Stra. 1195 (1742); Alexander v. Burchfield, 7 M. & Gr. 1061 (1842); Halstead v. Skelton, 5 Q. B. at pp. 93, 94 (1843); Mullick v. Radakissen, 9 Moore P. C. at p. 70 (1854); and Smith v. Vertue, 30 L. J. C. P. at pp. 59, 60 (1860).

It will be observed that this clause in the Canadian Act is wider in its scope than the corresponding one in the Imperial Act. The latter applies only to a qualified acceptance making a bill payable at a particular place, and there only; the former to all cases where either the bill itself or the acceptance names a place of payment.

inent.

94. Where the address of the acceptor for Time for honour of a bill is in the same place where the bill presentis protested for non-payment, the bill must be presented to him not later than the day following its maturity.

different

2. Where the address of the acceptor for hon- Parties in our is in some place other than the place where places. it is protested for non-payment, the bill must be

§ 94 forwarded not later than the day following its Present maturity for presentment to him. 53 V., c. 33, s. 66 (2). Imp. Act, s. 67 (2).

ment for payment.

Excuses

The provisions of the Act as to acceptance for honour are to be found in sections 147 to 152.

The "day following" means the next business day: sec. 6. The Act is silent as to the effect of want of presentation to the acceptor for honour within the prescribed time. The language used would seem to imply that he would be discharged, and also any party to the bill who would have been discharged if he had paid it. See Story v. Patten, 3 Wend. (N. Y.) 486 (1830); Nouguier, § 583; sec. 117 (2).

Where a dishonoured bill has been accepted for honour supra protest, it must be protested for non-payment before it is presented for payment to the acceptor for honour. If dishonoured by him it must be again protested for non-payment: sec. 117.

3. Delay in presentment or non-presentment is for delay. excused by any circumstance which would in case of acceptance by a drawee excuse delay for presentment for payment or non-presentment for pay53 V., c. 33, s. 66 (3). Imp. Act, s. 67 (3). For the circumstances which excuse delay in presenting a bill for payment see section 91 and the notes thereon; for those which dispense with presentment for payment see section 92 and notes.

Non-pay

ment on presentment.

Excuse.

ment.

Dishonour.

95. A Bill is dishonoured by non-payment,(a) when it is duly presented for payment and payment is refused or cannot be obtained; or, (b) when presentment is excused and the bill is overdue and unpaid. 53 V., c. 33, s. 47 (1). Imp. Act, ibid.

The provisions in this and following sections relating to dishonour and notice apply only when the bill is dishonoured in Canada. As to those payable abroad the law of the place governs: sec. 162.

As to presentment for payment, see sections 86 to 90; $ 95 as to when it is excused, see section 91.

As to when a bill is overdue, see sections 42 to 46.

2. Subject to the provisions of this Act, when Recourse. a bill is dishonoured by non-payment, an immediate right of recourse against the drawer, acceptor and endorsers accrues to the holder. 53 V., c. 33, s. 47 (2). Imp. Act, ibid.

The provisions of the Act to which the right of recourse is subject are those relating to notice of dishonour to the drawer and endorsers, sections 96 to 108; and to protest and notice to them in sections 112 and 117. The acceptor is liable without notice. A bill is also subject to the provisions of sections 147 to 155 as to acceptance and payment for honour.

action,

In the Imperial Act the word acceptor is not used. Right of Chalmers distinguishes between the right of recourse and the right of action. It has been held in England that the latter exists against a drawer or indorser only from the time when notice of dishonour is or ought to be received and not from the time when it is sent: Castrique v. Bernabo, 6 Q. B. 498 (1844).

arises.

There have been conflicting decisions in Canada, Eng- When it land and the United States as to whether an action may be instituted in the afternoon of the last day of grace after dishonour. It has been held that such an action is premature: Demers v. Rousseau, Q. R. 1 S. C. 440 (1892); Westaway v. Stewart, 8 W. L. R. (Sask.) 907 (1908); Wells v. Giles, 2 Gale, 209 (1836); Kennedy v. Thomas, [1894] 2 Q. B. 759; Wiesinger v. First Nat. Bank, 106 Mich. 291 (1895). Contra, Sinclair v. Robson, 16 U. C. Q. B. 211 (1858); Edgar v. Magee, 1 O. R. 287 (1882); Bank of Toronto v. McBean, 22 C. L. T. 44 (1900); Ontario Bank v. Foster, 6 L. N. 338 (1883); Leftley v. Mills, 4 T. R. 170 (1791); Estes v. Tower, 102 Mass. 66 (1869); Vandesande v. Chapman, 48 Me. 262 (1860).

In some of the cases a distinction has been drawn between an action against the acceptor of a bill or the maker

$95

When holder

may sue.

Quebec rule.

Notice of

dishonour.

of a note, and one against the drawer of a bill or the endorsers of a bill or note. Kennedy v. Thomas, supra, was an action against the acceptor, and the English Court of Appeal dismissed it as premature. Mathers, J., in Westaway v. Stewart, supra, decided to follow Kennedy v. Thomas in accordance with the dictum of the Privy Council in Trimble v. Hill, 5 App. Cas. 342 (1879) that where a colony has copied an English statute which had been construed by the English Court of Appeal, it was the duty of colonial courts to follow such decisions. He was of opinion that the enactment of section 121 (b) in the Canadian Act, providing for protest at any time after three o'clock, which is not in the English Act, was not sufficient to distinguish the two Acts.

In Quebec the insolvency of the acceptor before the maturity of the bill makes it immediately exigible as against him: Lovell v. Meikle, 2 L. C. J. 69 (1853); Corcoran v. Montreal Abattoir Co., 6 L. N. 135 (1882); Ontario Bank v. Foster, 6 L. N. 398 (1883); Pelletier v. Deschenes, 1 R. J. 352 (1892); La Banque Nationale v. Martel, Q. R. 17 S. C. 97 (1899); but not as against an indorser: Guilbault v. Migue, 20 R. L. 597 (1891); Trottier v. Rivard, Q. R. 23 S. C. 526 (1903). Prescription does not, however, begin to run until the time fixed for the maturity of the bill: Whitley v. Pinkerton, Q. R. 2 S. C. 256 (1892).

Where the acceptance is conditional the condition must be fulfilled or the acceptor is not liable: Dufresne v. Jacques Cartier Building Society, 5 R. L. 235 (1873); Fullerton v. Chapman, 8 N. S. (2 G. & O.) 470 (1871); Potters v. Taylor, 20 N. S. 362, 7 C. L. T. 434 (1888); Ontario Bank v. McArthur, 5 Man. 381 (1889); Gammon v. Schmoll, 5 Taunt. 344 (1814).

In an action on a bill or note payable at a particular place it is not necessary to shew that there were not sufficient funds at the place named; all that is necessary, even as against an indorser, is to show presentment, non-payment and notice of dishonour: McDonald v. McArthur, 8 Ont. A. R. 553 (1883).

96. Subject to the provisions of this Act, when a bill has been dishonoured by non-acceptance or

by non-payment, notice of dishonour must be § 96 given to the drawer, and each endorser, and any drawer or endorser to whom such notice is not given is discharged: Provided that,

quent

(a) where a bill is dishonoured by non-accept- Subseance, and notice of dishonour is not given, the holder. rights of a holder in due course subsequent to the omission shall not be prejudiced by the omission; (b) where a bill is dishonoured by non-accept- Notice of ance, and due notice of dishonour is given, it nonshall not be necessary to give notice of a subsequent dishonour by non-payment, unless the bill shall in the meantime have been accepted. 53 V., c. 33, s. 48. Imp. Act, ibid.

The provisions of the Act which dispense with notice of dishonour in certain cases, and excuse delay in giving notice in others, are in sections 105 to 108.

The rules governing notice of dishonour are to be found. in section 97. As to when a bill is dishonoured by nonacceptance or non-payment, see sections 81 and 95.

The liability of the drawer and endorsers to a bill being contingent upon its non-acceptance or non-payment, notice of dishonour must be given to them, save in the exceptional cases mentioned in sections 106 to 108, in order to hold them liable.

By section 131, any person who signs a bill otherwise than as a drawer or acceptor, incurs the liabilities of an endorser to a holder in due course, and is subject to all the provisions of the Act respecting endorsers.

A note was made payable in 18 months with interest payable half-yearly. Non-payment of an instalment of interest held to be dishonour, and indorser released therefrom for want of notice: Jennings v. Napanee Brush Co., 8 C. L. T. 595 (1881); followed in Moore v. Scott, 16 Man. 492; 5 W. L. R. 8 (1907). The note is not on that account overdue or dishonoured as to future instalments: Union Investment Co. v. Wells, 39 S. C. Can. 625 (1908).

Under French law, indorsers are discharged for want of notice, but a drawer is not, unless he can shew that the

payment.

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