It would seem that even the drawee may accept for the § 147 honour of the drawer or an indorser, and thereby incur only Supra proa minor risk Halsbury, vol. 2, p. 539, note (i). It is not necessary that the protest should be extended before acceptance supra protest; it is sufficient that the bill has been noted: secs. 118, 119 (2). As to protest for better security when the acceptor has failed, see section 116, and Ex parte Wackerbath, 5 Vesey, 574 (1800). The holder may refuse to allow an acceptance supra protest; he may prefer an immediate recourse against the parties liable to him on the bill. An acceptance supra protest benefits only the party for whose honour it is made, and those subsequent to him. With the consent of the holder there might also be acceptances supra protest for the honour of prior parties: 1 Daniel, § 525. The drawee may also change his mind and accept supra protest. If the acceptor supra protest should fail, there might be a second acceptance, after a protest for better security. In Quebec under the Code, an acceptor was bound to give notice without delay to the party for whose benefit he accepted, and to the other parties liable to him on the bill: C. C. 2297. This is not now required. The acceptance for honour is conditional upon non-payment by the drawee. The bill must still be presented at maturity to the drawee and protested for non-payment before being presented to the acceptor for honour, who is in the position of a surety, rather than as being primarily liable: sections 152 and 155. test. ILLUSTRATIONS. 1. A defendant cannot be charged as an acceptor of a bill that has already been accepted, though conditionally, by the drawee: Spalding v. McKay, 5 U. C. O. S. 656 (1838). 2. Originally it was not necessary to protest a bill before an acceptance for honour: Mutford v. Walcot, 1 Ld. Raym, 575 (1697). 3. A protest was subsequently held to be a necessary preliminary in accordance with the custom of merchants: Vandewall v. Tyrrell, 1 M. & M. 87 (1827). § 148 In part. Deemed to 53 V., 148. A bill may be accepted for honour for part only of the sum for which it is drawn. c. 33, s. 64 (2). Imp. Act, s. 65 (2). An acceptance for part only is a qualified acceptance, which the holder may refuse to take: sec. 38; but does not require the assent of the drawer or endorsers where notice has been given: sec. 84. Where a foreign bill has been accepted as to part, it must be protested as to the balance: sec. 112 (3). 149. Where an acceptance for honour does not be for expressly s ate for whose honour it is made, it is honour of deemed to be an acceptance for the honour of the drawer. 53 V., c. 33, s. 64 (4). Imp. Act, s. 65 (4). drawer. Maturity of after 150. Where a bill payable after sight is accepted for honour, its maturity is calculated from the date sight bill. of protesting for non-acceptance, and not from the date of the acceptance for honour. 53 V., c. 33, s. 64 (5). Imp. Act, s. 65 (5). This section is copied from the Imperial Act with the single substitution of the word "protesting" for "noting," which really makes no change: sec. 119 (2). In order to make it harmonize with section 23 (a), the words "at sight or" should have been inserted as was done by the amending Act of 1891, in what are now sections 5, 30, 37 and 77. It is likely, however, that the Courts will interpret it as if the change had been made. The former rule was to calculate the maturity from the date of the acceptance and not of the protest: Williams v. Germaine, 7 B. & C. at p. 471 (1827). In the case of an ordinary acceptance time runs from the date of acceptance: sec. 45. 151. An acceptance for honour supra protest, in § 151 order to be valid must. Require ments. (a) be written on the bill, and indicate that it Writing. is an acceptance for honour, and, (b) be signed by the acceptor for honour. 53 V., Signature. c. 33, s. 64 (3). Imp. Act, s. 65 (3). دو The usual form of such an acceptance is "accepted for honour," ""accepted supra protest," more frequently simply, "accepted S. P.," with the signature of the acceptor, and if not accepted for the honour of the drawer, with a designation of the party for whose honour it is made. Formerly a notarial" act of honour was necessary as in the case of a payment for honour: Brooks' Notary, 6th ed., p. 83; Mitchell v. Baring, 10 B. & C. 4 (1829); Gazzam v. Armstrong, 3 Dana, 554 (1835); sec. 154; but this is not required by the Act. As to the requirements of an ordinary acceptance, see section 36. of acceptor 152. The acceptor for honour of a bill by accept- Liability ing it engages that he will, on due presentment, f pay the bill according to the tenor of his accept- honour. ance, if it is not paid by the drawee, provided it has been duly presented for payment and protested for non-payment, and that he receives notice of these facts. as others. 2. The acceptor for honour is liable to the To holder holder and to all parties to the bill subsequent to the party for whose honour he has accepted. V., c. 33, s. 65. Imp. Act, s. 66. 53 The acceptor for honour is only secondarily liable on the bill. The reason for requiring a presentation for payment to the drawee at maturity, is that he may in the meantime have received effects or instructions that may lead him to pay the bill: Hoare v. Cazenove, 16 East, 398 (1812). The acceptor for honour is not justified in paying unless the bill $152 has been protested, and he has received notice. He may specify in his acceptance a particular place of payment, and if so the bill should be presented there: sec. 38 (4). Payment for honour supra protest. He is bound by the estoppels which bind an original acceptor and those which bind the party for whose honour he has accepted: Halsbury, vol. 2, s. 927; Phillips v. Im. Thurn, L. R. 1 C. P. 463 (1866). 153. Where a bill has been protested for nonpayment, any person may intervene and pay it supra protest for the honour of any party liable thereon, or for the honour of the person for whose account the bill is drawn. 53 V., c. 33, s. 67 (1). Imp. Act, s. 68 (1). Any person may pay a protested bill supra protest whether liable on the bill or not, on observing the provisions of section 154. It is not necessary that the protest be actually extended before the payment for honour is made; it is sufficient that it be noted: sec. 118. The person for whose account a bill is drawn is in England called "the third account." This section would appear to be applicable to promissory notes. A person who takes up a bill supra protest for the benefit of a particular party to the bill succeeds to the title of the person from whom, not for whom, he receives it, and has all the title of such person to sue upon the bill, except that he discharges all the parties subsequent to the one for whose honour he takes it up, and that he cannot himself indorse it over: In re Overend, Gurney & Co., Ex parte Swan, L. R. 6 Eq. 344 (1868). See also Cowan v. Doolittle, 46 U. C. Q. B. 398 (1881); MacArthur v. MacDowall, 23 S. C. Can. 571 (1893); Ex parte Lambert, 13 Vesey, 179 (1806); Geralopulo v. Wieler, 10 C. B. 690 (1851); Ex parte Wyld, 2 DeG. F. & J. 642 (1860); Deacon v. Stodhart, 2 M. & Gr. at p. 320 (1841); Baring v. Clark, 19 Pick. (Mass.) 220 (1837); Schofield v. Bayard, 3 Wend. (N. Y.) 88 (1830). The French Code de Commerce contains provisions § 153 similar to those of the present section: Arts. 158, 159. It is there called payment by intervention. See also Pothier, Change, Nos. 113, 114 and Nouguier, §§ 1004-1009. than one 2. Where two or more persons offer to pay a bill It more for the honour of different parties, the person offer. whose payment will discharge most parties to the bill shall have the preference. receive 3. Where the holder of a bill refuses to receive Refusal to payment supra protest, he shall lose his right of payment. recourse against any party who would have been discharged by such payment. bill. 4. The payer for honour on paying to the holder Entitled to the amount of the bill and the notarial expenses incidental to its dishonour, is entitled to receive both the bill itself and the protest. for refus 5. If the holder does not on demand in such Liability case deliver up the bill and protest, he shall be ing. liable to the payer for honour in damages. 53 V., c. 33, s. 67 (6). Imp. Act, s. 68 (6). It was held by Chitty, J., in re English Bank [1893] 2 Ch. at p. 444, that the notarial expenses in the clause of the Imperial Act corresponding to sub-section 4 did not include the protest for better security under section 116. This was based on the language of section 57 of that Act, which provides for the expenses of noting being included in the amount of a bill, but for those of protesting only when a protest was necessary. He held that a protest for better security being voluntary it should not be included; the restrictive words, "when protest is necessary," are not in the Canadian Act: sec. 124. tion of for honour. 154. Payment for honour supra protest, in order Attesta to operate as such and not as a mere voluntary payment payment, must be attested by a notarial act of honour, which may be appended to the protest or form an extension of it. |