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(c) After sight means after acceptance, sect. 39, sub-sect. 1 of this ss. 11, 12, 13. Act; Campbell v. French, 6 T. R. at p. 212.
Bill payable at (d) See Andrews v. Franklin, 1 Stra. 24; Carlos v. Fancourt, a future time. 5 T. R. 482; and the cases mentioned in note (6) hereto.
(e) See notes (y) (2) and (p) to sect. 3 of this Act. It has been held that unless the contingency is on the face of the instrument it is not void, Richards v. Richards, 2 B. & Ad. 447.
(5) So held in Hill v. Halford, 2 B. & P. 413; see also Chitty on Bills (9th Edition), pp. 135 & 144.
date in bill
12.—Where a bill expressed to be payable at a fixed Omission of period after date is issued undated, or where the accept- payable after ance of a bill payable at a fixed period after sight is date. undated, any holder may insert therein the true date of issue or acceptance, and the bill shall be payable accordingly (a).
Provided that (1) where the bolder in good faith and by mistake inserts a wrong date, and (2) in every caso where a wrong date is inserted, if the bill subsequently comes into the hands of a holder in due course the bill shall not be avoided thereby; but shall operate and be payable as if the date so inserted had been the true
(a) If there be no date on a bill or note, it has been held that it will be considered as dated at the time it was drawn or made, Giles v. Bourne, 6 M. & S. 73; Story on Bills, s. 37; and parol evidence is admissible to shew such date, Davis v. Jones, 17 C. B. 625; 25 L. J. C. P. 91.
(6) See Way v. Hearne, 32 L. J. C. P. 34.
13.-(1.) Where a bill or an acceptance or any indorse- Ante-dating ment on a bill is dated, the date shall, unless the contrary dating. be proved, be deemed to be the true date of the drawing, Ind. Act. s. acceptance, or indorsement, as the case may be (a). 118, sub.-8. (6).
(2.) A bill is not invalid by reason only that it is antedated or post-dated (b), or that it bears date on a Sunday (c).
(a) This is a rule of evidence, Malpas v. Clements, 19 L. J. Q. B.
Laws v. Rand, 3 C. B. N. S. 442; Anderson v. Weston, 6 Bing. N. C. 296 ; Potez v. Glossop, 2 Ex. 195; and note () to sect. 3 of
SS. 13, 14.
Ante-dating and postdating.
this Act. See note (c) hereto for what was formerly an exception to this rule.
(6) As to antedated and postdated instruments see Passmore v. North, 13 East, 517; Austin v. Banyard, 34 L. J. 217; Forster v. Mackreth, L. R. 2 Ex. 163; 36 L. J. Ex. 94; Bull v. O'Sullivan, L. R. 6 Q. B. 209; 40 L. J. Q. B. 141; Gatty v. Foy, 2 Ex. D. 265. As to cheques see note (a) to sect. 73 of this Act.
(c) Before this Act a bill or note dated on a Sunday was presumed not to have been issued on that day, Begbie v. Levy, 1 Cr. & J. 180.
Ind. Act, s. 25.
Ind. Act, s. 25.
14. Where a bill is not payable on demand (2) the day on which it falls due is determined as follows:
(1.) Three days, called days of grace (y), are, in every case where the bill itself does not otherwise provide, added to the time of payment as fixed by the bill, and the bill is due and payable on the last day of grace. Provided that:
(a) When the last day of grace falls on Sunday,
Christmas Day, Good Friday, or a day appointed by the Royal proclamation as a public fast or thanksgiving day, the bill is, except in the case hereinafter provided for, due and payable on the
preceding business day (w). (6) When the last day of grace is a bank holiday
(other than Christmas Day or Good Friday) under the Bank Holiday Acts 1871, and Acts amending or extending it, or when the last day of grace is a Sunday and the second day of grace is a Bank holiday, the bill is due and payable on the suc
ceeding business day (v). (2.) Where a bill is payable at a fixed period after date, after sight, or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run, and by including the day of payment (t).
(3.) Where a bill is payable at a fixed period after sight the time begins to run from the date of the acceptance if the bill be accepted, and from the date of noting or protest if the bill be noted or protested for nonacceptance or for non-delivery (s).
34 & 35 Vic.
Ind. Act, s. 24.
Ind. Act, s. 23.
(4.) The term “month” in a bill means calendar S. 14. month (r).
of time of (z) Days of grace have been also allowed on promissory notes, payment. vide Brown v. Ilarraden, 4 T. R. 148. But not, as also provided in this section, on bills or notes payable on demand. As we have seen before, a bill payable at sight is a bill payable on demand. In Oridge v. Sherborne, 11 M. & W.374, it was held that the maker of a note is entitled to the days of grace upon the falling due of each instalment; see also Gaskin v. Davis, 2 F. & F. 294.
(y) So called because they were formerly allowed the drawee as a favour, but they have long since been recognised as a right, vide Byles on Bills (13th edition), pp. 209 and 210, where a table of the days of grace in different countries is given, taken from Mr. Kyds' work on Bills.
In India they have three days of grace; see sect. 22 of the Indian Act. It has been held that a demand for payment before the expiration of the days of grace is premature, Wiffen v. Roberts, 1 Esp. 261. The parties to a bill contract for the payment of it according to the existing law of the country in which it is to be paid, per Cockburn, C. J., in Rouquette v. Overman, L. K. 10 Q. B. 525.
(w) See 39 & 40 Geo. 3, c. 42, and 7 & 8 Geo. 4. c. 15. In a recent case the plaintiff in the action sued on a promissory note dated the 11th March, 1874, and payable three months after date. The third day of grace was the 14th day of June, 1874, which was a Sunday. The action was commenced on the 14th day of June, 1880, which was a Monday. It was held that the claim was barred by the Statute of Limitations, Morris v. Richards, 45 L. T. N. S. 210. As to a bill falling due on a public holiday in India, see sect. 25 of the Indian Act.
(v) This is practically the same as the provisions of section 1 of the Bank Holidays Act (34 Vict. c. 17) by which all bills of exchange and promissory notes which are due and payable on any Bank Holiday shall be payable on the next following day. There seems to be an omission in the present sub-sect. of a case where the last day of grace is a Sunday, and the second day of grace a Christmas Day. In such a case it would seem that the bill is payable on the first day of grace.
(t) See Coleman v. Sayer, 1 Barnard, 303; and Campbell v. French, 6 T. R. 212.
(s) See Campbell v. French, supra.
(r) So held as to bills and notes, Cockell v. Gray, 3 B. & B. 186; months usually denote at law lunar months, Simpson v. Margitson, 11 Q. B. 23. As to the meaning of the word “ calendar month," and as to its length, see Migotti v. Colville, 4 C. P. D. 233; 48 L. J. C. P. 695 ; 40 L. T. N. S. 747 ; 27 W. R. 744.
SS. 15, 16.
Case of need.
Ind. Act, s. 7.
15.-The drawer of a bill and any indorser may insert therein the name of a person to whom the holder may resort in case of need, that is to say, in case the bill is dishonoured by non-acceptance or non-payment. Such person is called the referee (a) in case of need. It is in the option of the holder to resort to the referee in case of need or not as he may think fit (b).
(a) “The referee, in case of need, is more properly an original alternative drawee than an acceptor for honour.” Byles on Bills (11th edition), p. 262. See 1 Parsons on Bills, 64 ; see also the judgment of Lord Lyndhurst, C. B., in Leonard v. Wilson, 2 Cr. & M. 589.
(6) It seems that the words “ in case of need” in an indorsement mean, “ in case it is necessary to resort to the indorser ;” and it has been held that the naming a referee in case of need, assuming that it constitutes such referee agent of the indorser for payment, does not constitute him the indorser's agent for notice of dishonour generally, and therefore notice to him of dishonour by the acceptor is not notice to the indorser, In re Leeds Banking Company, Ex parte Prange, L. R. 1 Eq. 1; 35 L. J. Ch. 33.
Optional 16.— The drawer of a bill, and any indorser, may insert stipulations by therein an express stipulation (a). indorser. (1.) Negativing or limiting his own liability to the
(2.) Waiving as regards himself some or all of the holder's duties (6).
Ind. Act, s. 52.
(a) This does at first sight seem inconsistent with the definition of a bill of exchange given in sect. 3 (1) and (2). But on a careful consideration it will be found that it is not so. A bill of exchange is still unconditional even though it contains a stipulation on the part of the drawer negativing or limiting his own liability to the holder. Any stipulation to this effect cannot affect the order from the drawer to the drawee. Again as to promissory notes, an express stipulation inserted in a promissory note by the first indorser thereof (who corresponds with the drawer of a bill), negativing or limiting his liability, will not make the promise of the maker conditional. Nor is this section altogether new,
for even before this Act a bill could be indorsed with a written or a verbal agreement between an indorser and his immediate indorsee that the latter will not look to the former for payment, Pike v. Street, 1 M. & M. 226; Thompson v. Clubley, 1 M. & W. 212. So also it was held that if the indorsement is unqualified, thé indorsee is liable, Goupy v. Harden, 7 Taunt. 159. So also it was held that when
SS. 16, 17,
an indorsement is made and taken “without recourse," every liability that would otherwise exist is excluded and no action can be maintained upon it, Dumont v. Williamson, 17 L. T. N. S. 71.
(b) As to such waiver, see Leonard v. Wilson, 2 Cr. & M. 589; Phipson v. Kneller, 4 Camp. 285.
Optional stipulations by drawer or indorser.
17.-(1.) The acceptance (z) of a bill is the signification by the drawee of his assent to the order of the requisites of drawer.
acceptance. (2.) An acceptance (y) is iuvalid unless it complies with Ind. Act, s. 7. the following conditions, namely:
(a.) It must be written on the bill and signed by the
drawee (a). The mere signature of the drawee
without additional words is sufficient (w).
his promise by any other means than the payment
(z) This is the same definition that has existed before this Act, vide Byles on Bills (13th edition), p. 187; Chalmers' Digest of the Law of Bills of Exchange (2nd edition), p. 32. “ What is an acceptance but an engagement to pay the bill when due," per Lawrence, J., in Clarke v. Cock, 4 East, 72. See also note (z) to sect. 54 of this Act. As to liability before acceptance see Frith v. Forbes, 32 L. J. Ch. 10. As provided in sect. 2 of this Act, it has been held that delivery is necessary to complete acceptance; see the cases in note (a) to that section. See further sub-sects. (1) & (2) sect. 21 of this Act and the notes thereto.
(y) As to what has before this Act been considered in form a sufficient acceptance, the result of the old cases may be stated thus :Any form of words which intimates that the drawer intends to pay is a sufficient acceptance; that is, anything in writing, and signed by the party, Smith v. Vertue, 9 C. B. N. S. at p. 227 (per Byles, J.). See also notes (a) and (w) hereto.
(2) This is virtually the same as the provisions as to acceptance contained in section 6 of the 19 & 20 Vict. c. 97, by which an acceptance had to be written on the bill (which was done by writing the word" accepted” across the face of it) and signed by the drawee, who after he has put his signature is called the acceptor. And in a recent case it was held that a bill of exchange was not sufficiently accepted to satisfy the 19 & 20 Vict. c. 97, s. 6, if the drawee merely wrote his name across the face of it, and there were no words amounting to a statement that the bill was accepted, Hindhaugh v. Blakey, 47 L. J. Q. B. D. 345; L. R. 3 C. P. D. 136. But the legislature altered this