This provision is declaratory of the law. The cases are to the effect that if a bill has been duly presented for acceptance or payment and dishonored, and a minute made at the time of the steps taken, which is called noting the bill, a protest may be drawn up in form afterward, at the convenience of the notary." And it has been held sufficient if the protest was drawn up at any time before the trial.50 § 158. Where protest to be made. 66 The Negotiable Instruments Law provides that: "A bill must "be protested at the place where it is dishonored, except that "when a bill drawn payable at the place of business or residence "of some person other than the drawee has been dishonored by nonacceptance, it must be protested for nonpayment at the place where it is expressed to be payable, and no further presentment for payment to, or demand on, the drawee is necessary. This section is substantially the same as a provision contained in the English Bills of Exchange Act.52 It is probable that this section is declaratory of the common law.53 66 وو When a bill has been duly noted, the protest may be subsequently extended as to the date of the noting.' By the French Code, art. 162, a bill is to be protested for nonpayment on the day after it is due. By the German Exchange Law, art. 41, a dishonored bill may be protested for nonpayment on the day it is due, and it must not be protested later than the second day after. 49. Bailey v. Dozier, 6 How. (U. S.) 23, 12 L. Ed. 328; Billingsley v. State Bank, 3 Ind. 375; Chatham Bank v. Allison, 15 Iowa, 357; First Nat. Bank v. Crittenden, 2 Thomp. & C. (N. Y.) 118; Union Bank v. Holcomb, 5 Humph. (Tenn.) 538; Rutland & B. R. R. Co. v. Cole, 24 Vt. noted for protest before the expiration of the specified time or the taking of the proceeding; and the formal protest may be extended at any time thereafter as of the date of the noting." 51. Neg. Inst. L. (N. Y.), § 264. For same section in statutes of other States see Appendix. 52. English Bills of Exchange Act, § 51 (6b). This subsection was derived from 2 & 3 Will. IV, chap. 98. 53. Mitchell v. Baring, 10 B. & C. (Eng.) 4. In the case of Boot v. Franklin, 3 Johns. (N. Y.) 207, where a bill was drawn on a person residing at Liverpool, payable in London, and after being protested for nonacceptance at Liverpool was protested at London for nonpayment, and the declaration stated, "That the bill not being paid, and the holder not knowing where to present the same for payment in London, caused the same to be protested," etc. It was held that the protest for nonpayment was sufficient, and where no place of payment in London was specified in the bill, the holder was not bound to make any inquiries after the drawee there. § 159. Special statutory provisions as to protest. 55 The a. Protest for both nonacceptance and nonpayment. Negotiable Instruments Law provides that: "A bill which has "been protested for nonacceptance may be subsequently pro"tested for nonpayment." 54 This section is the same as a provision of the English Bills of Exchange Act." Where a bill is dishonored by nonacceptance an immediate right of recourse against the drawers and indorsers accrues to the holder, and no presentment for nonpayment is necessary.56 This being so, a protest for nonpayment after a bill has been protested for nonacceptance would not be necessary to bind the parties, except for the fact that where some of the parties are residents of a foreign country where under the laws thereof no right of action accrues on nonacceptance but only upon nonpayment at maturity; to bind such parties it might be necessary to subsequently protest for nonpayment. 59 57 b. Protest before maturity where acceptor is insolvent.— The Negotiable Instruments Law provides that: "Where the acceptor "has been adjudged a bankrupt or an insolvent or has made an 66 assignment for the benefit of creditors, before the bill matures, "the holder may cause the bill to be protested for better security against the drawers and indorsers." 58 This section is also derived from a similar provision of the English Bills of Exchange Act.5 The object of the section is to afford protection to the holder as against the parties secondarily liable, when the acceptor becomes insolvent. Under the French Code if the acceptor becomes insolvent the bill may at once be treated as dishonored and protested for nonpayment. Notwithstanding the protest for better security before the maturity of the bill, no right of action accrues against the parties secondarily liable until the bill falls due. 61 The only advantage to be gained by such a protest is from the notice to such parties that they will be expected to pay at maturity. 60 54. Neg. Inst. L. (N. Y.), § 265. For the same section in the statutes of other States see Appendix. 55. English Bills of Exchange Act, § 51 (3). 56. Neg. Inst. L. (N. Y.), § 248. See ante, § 146 (c.). 57. Chalmers on Bills of Exchange, p. 172. 58. Neg. Inst. L. (N. Y.), § 266. For the same section in the statutes of other States see Appendix. 59. English Bills of Exchange Act, § 51 (5). 60. French Code, art. 163. Under the German Exchange Law, art. 29, if the acceptor fails during the currency of the bill, security can be demanded from the drawer and indorsers. 61. Byles on Bills (16th ed.), p. 220. 66 c. Protest where a bill is lost or destroyed.- The Negotiable Instruments Law provides that: "Where a bill is lost or destroyed or is wrongly detained from the person entitled to hold "it, protest may be made on a copy or written particulars "thereof." 62 A similar provision is contained in the English Bills of Exchange Act.63 The loss, destruction, or wrongful detention of a bill does not excuse a protest thereof; but in such a case it must be protested as provided in the above section. 66 Delay d. When protest dispensed with.- The Negotiable Instruments Law provides that: "Protest is dispensed with by any circum"stances which would dispense with notice of dishonor. "in noting or protesting is excused when delay is caused by cir"cumstances beyond the control of the holder and not imputable to his default, misconduct, or negligence. When the cause of "delay ceases to operate, the bill must be noted or protested with 66 reasonable diligence.' "64 A similar provision is contained in the English Bills of Exchange Act. The effect of this section is to apply to a protest the provision of the statute relating to dispensing with notice of dishonor and to an excuse for the delay in giving such a notice. We have already considered such provisions in another place, and many of the cases there cited are equally applicable to this section.66 62. Neg. Inst. L. (N. Y.), § 268. For the same section in the statutes of other States see Appendix. 63. English Bills of Exchange Act, § 51 (8). 64. Neg. Inst. Law (N. Y.), § 267. For the same section in the statutes of other States see Appendix. 65. English Bills of Exchange Act, § 51 (9). 66. See Neg. Inst. L. (N. Y.), §§ 183, 184; ante, § 117, and cases cited thereunder. CHAPTER XVI. Acceptance and Payment of Bills of Exchange for Honor. § 160. Acceptance for Honor; When and How Made. a. When bill may be accepted for honor. b. How made. c. When deemed acceptance for honor of drawer. § 161. Liability and Rights of Acceptor for Honor. a. Liability of acceptor for honor. b. Agreement of acceptor for honor. § 162. Maturity of Bill Payable After Sight; Protest and Dishonor of Bill Accepted for Honor. a. Maturity of bill payable after sight. b. Protest of bill accepted for honor. c. Dishonor of bill by acceptor for honor. § 163. Presentment for Payment to Acceptor for Honor. a. How made. b. Delay in making presentment. § 164. Payment for Honor. a. Who may make. b. How made. c. Declaration before payment for honor. § 165. Rights and Liabilities of Parties. a. Preference of parties offering to pay for honor. b. Effect of payment for honor on subsequent parties. § 160. Acceptance for honor; when and how made. a. When bill may be accepted for honor.- The Negotiable Instruments Law provides that: "Where a bill of exchange has "been protested for dishonor by nonacceptance or protested for "better security and is not overdue, any person not being a party already liable thereon, may, with the consent of the holder, "intervene and accept the bill supra protest for the honor of any "party liable thereon or for the honor of the person for whose account the bill is drawn. The acceptance for honor may be "for part only of the sum for which the bill is drawn; and where "there has been an acceptance for honor for one party, there may "be a further acceptance by a different person for the honor of "another party." 99 67 This provision is in substance the same as a provision of the English Bills of Exchange Act.68 Its object is to enable any party who is liable on the bill to induce his friends to intervene for the protection of his credit and to permit a ready negotiation of the bill. The English act does not contain a provision for the acceptance for honor of the bill by another party where it is already accepted for honor by one party. The holder of a bill is not required to take an acceptance for honor. And before he takes such an acceptance he should first cause the bill to be protested and then to be accepted in the manner hereinafter described.9 Any person who is not already liable as a party to the bill may accept it for honor; and the drawee himself, though he may refuse to accept the bill, generally may, nevertheless, accept it for the honor of the drawer or of any one indorser. It is no objection to the intervention for the honor of the indorser or drawer, that it has been done at the request and under the guaranty of the drawees of the bill, who refused to accept or pay the An arrangement made by the acceptor for honor, with the drawee, by which he was to be protected from loss, does not affect the liability of the party to the bill, for whose honor it has been paid.70 Where a bill of exchange is directed to a particular person, another person cannot accept it, but for the honor of one of the parties.71 same. 66 b. How made.- The Negotiable Instruments Law provides that: "An acceptance for honor supra protest must be in writing "and indicate that it is an acceptance for honor, and must be signed by the acceptor for honor." 72 The English Bills of Exchange Act provides that such an acceptance must be written on the bill. The change in this rule made by the Negotiable Instruments Law is evidently for the purpose of permitting such an acceptance to be made by a separate instrument." 67. Neg. Inst. L. (N. Y.), § 280. For the same section in the statutes of other States see Appendix. 68. English Bills of Exchange Act, § 65 (1), (2). 69. Byles on Bills (16th ed.), 275. For the same section in the statutes of other States see Appendix. 73 70. Konig v. Bayard, 1 Pet. (U. S.) 250, 7 L. Ed. 132. 71. May v. Kelly, 27 Ala. 497. 72. Neg. Inst. L. (N. Y.), § 281. For the same section in the statutes of other States see Appendix. 73. English Bills of Exchange Act, § 65 (3). |