페이지 이미지
PDF
ePub

4 A. & E. 838; Parkin v. Moon, 7 C. & P. 408; Anderson v. Weston, SS. 36, 37, 38. 6 Bing. N. C. 296. (8) The question in such cases always is whether the indorsee acted overdue or

Negotiation of with good faith in taking the bill, see Goodman v. Harvey, 4 A. & E. dishonoured 870; 6 N. & M. 372; Carlon v. Ireland, 5 E. & B. 765. As to what

bill. is bona or mala fides see Raphael v. Bank of England, 17 C. B. 161.

37.-Where a bill is negotiated back to the drawer (a), Negotiation of or to a prior indorser (b), or to the acceptor (c), such party already liable may, subject to the provisions of this Act, re-issue and thereon. further negotiate the bill (d), but he is not entitled to Ind. Act, s. 51. enforce payment of the bill against any intervening party to whom he was previously liable (e).

(a) As to bills negotiated back to the drawer, see Roberts v. Eden, 1 B. & P. 398; Callow v. Lawrence, 3 M. & S.95; Hubbard v. Jackson, 3 C. & P. 134; 4 Bing. 390; Wilders v. Stevens, 15 M. & W. 208; Morris v. Walker, 15 Q. B. 589; Woodward v. Pell, L. R. 4 Q. B. 55 ; 38 L. J. Q. B. 30.

(6) As to bills negotiated back to a prior indorser, see Britten v. Webb, 2 B. & C. 482 ; Bishop v. Hayward, 4 T. R. 470; Wilkinson v. Unwin, 7 Q. B. D. 636; 50 L. J. Q. B. D. 338. As to negotiation back by a surety, see sect. 85, note (a).

(c) As to bills negotiated back to the acceptor, see Attenborough v. Mackenzie, 25 L. J. Ex. 244.

(d) In Attenborough v. Mackenzie, 25 L. J. Ex. 244, it was so decided. (e) See Beck v. Robley, 1 H. Bl. 89, n.; and the above cases.

holder.

and 46.

38.—The rights and powers of the holder () of a bill Rights of the are as follows: (1.) He may sue on a bill in his own name (y):

Ind. Act, s. 8. (2.) Where he is a holder in due course, he holds the Ind. Act, ss.

bill free from any defect of title of prior parties,
(«) as well as from mere personal defences (w)
available to prior parties among themselves, and
may enforce payment against all parties liable on

the bill (v): (3.) Where his title is defective (a) if he negotiates Ind. Act, ss. 9

the bill to a holder in due course, that holder
obtains a good and complete title to the bill (t),
and (b) if he obtains payment of the bill the Inil. Act, ss. 10

pays him in due course gets a valid
discharge for the bill (s).

and 46.

and 78.

person who

F

S. 38.

Rights of the holder.

(2) As to the definition of a holder see sect. 2 of this Act and note (1) thereto, and as to the definition of a holder in due course see sect. 29 of this Act and the notes thereto.

(y) This is the same as hitherto, see Byles on Bills (13th edition), 410. Where the holder of a bill indorsed in blank, being unwilling to sue in his own name upon it, requested one K., who had guaranteed the payment of it, to get some one to sue for him upon it, and K. got the plaintiff, who however had neither any interest in the bill nor possession of it, it was held that he could not maintain the action, Emmett v. Tottenham, 8 Ex. 884. But a person may ratify an action brought in his name, but without his knowledge or authority, by another professing to act as his agent and on his behalf, Ancona v. Marks, 7 H. & N. 686. It is competent to the holder to hand the bill over to a third person to sue upon it on his behalf, Law v. Parnell, 7 C. B. N. S. 282; and he may do so to a person to whom he is indebted and still sue, provided such person to whom the bill has been handed over be a trustee for him, Stones v. Butt, 2 Cr. & M. 416.

(a) See section 29 and notes (z) (y) (x) and (w) thereto, and also section 27 (2) and note (w) thereto. As to the defect of title of prior parties affecting a bill, see note (x) to section 36.

(w) As to the holder in due course of a bill being free from personal defences, as for example a set-off in respect of a debt due from the payee to the maker of a note, see Burrough v. Moss, 10 B. & C. 558; Ex parte Swan, In re Overend, Gurney & Co., L. R. 6 Eq. 345.

(v) See note (y) hereto.

(t) A bill, accepted upon the terms of the sale and return of certain goods, a portion of which only had been sold, was indorsed by the drawer for a valuable consideration before it became due to B. & Co. After it became due, B. & Co. transferred it to the plaintiff by delivery; and at the time of the transfer the name of B. & Co. was erased from the back of the bill, it was held that the transfer by delivery from B. & Co. passed their title in the bill to the plaintiff, and that the agreement between the drawer and the acceptor was no answer to an action on the bill, Fairclough v. Pavia, 9 Ex. 690 ; again in Marston v. Allen, 8 M. & W. 504, it was laid down (per Alderson, B.), that every person having possession of a bill has (notwithstanding any fraud on his part, either in acquiring or transferring it) full authority to transfer such bill, but with this limitation, that to make such transfer valid, there must be a delivery, either by him or some subsequent holder of the bill, to some one who receives such bill bonâ fide and for value, and who is either the holder of it or a person through whom the holder claims.

(s) As to such a discharge, see Robarts v. Tucker, 16 Q. B. 560; as to payment in due course, see n. (y) to section 36.

GENERAL DUTIES OF THE HOLDER.

S. 39.

ment for ac

necessary.

39,4(1) Where a bill is payable after sight, present. When presentment for acceptance is necessary in order to fix the

ceptance is maturity of the instrument (a).

(2.) Where a bill expressly stipulates that it shall be Ind. Act, s. 61. presented for acceptance (1), or where a bill is drawn pay- and 3.76 subable elsewhere than at the residence or place of business sect. (a). of the drawee, it must be presented for acceptance before it can be presented for payment (c).

(3.) In no other case is presentment for acceptance necessary in order to render liable any party to the bill (d).

(4.) Where the holder of a bill, drawn payable elsewhere than at the place of business or residence of the drawee, has not time, with the exercise of reasonable diligence, to present the bill for acceptance before presenting it for payment on the day that it falls due, the delay caused by presenting the bill for acceptance before presenting it for payment is excused, and does not discharge the drawer and indorsers (e).

(a) As to the necessity for presentment for acceptance see Chitty on Bills (9th Edit.), p. 237; Byles on Bills (13th Edit.), 182 ; Story on Bills, sect. 228; and Chalmers' Digest of the Law of Bills of Exchange (2nd edition), p. 130. The two cases mentioned in the first two subsections of this section are the only cases in which presentment for acceptance is necessary. By sub-sect. (a) of sect. 10 (1) of this Act, re-enacting the provisions of 34 & 35 Vict. c. 74, a bill payable at sight or on presentation is payable on demand.

Where a bill is payable at sight, acceptance and payment are simultaneous, therefore under the present section presentment for acceptance is not necessary but optional. To charge the drawer of an unaccepted bill, some actual evidence of a demand to accept on the drawee must be proved, Cheek v. Roper, 5 Esp. 174. In Mullick v. Radakissen, 9 Moore, P. C. C. 46, it was held that a foreign bill of exchange payable after sight must be presented for acceptance; and that within a reasonable time. By sect. 40 (1) a bill payable after sight must be presented within a reasonable time; as to the mode of determining the question of such reasonable time, see sub-sect. (3) of that section; also note (v) to section 36; also Straker v. Graham, 4 M. & W. 721. It is the regular and usual course of business in commercial transactions to deliver out a

SS. 39, 40.

When present ment for acceptance is necessary.

bill, left for acceptance, to any person who mentions the amount, and describes any private mark or numier upon it; and if the clerk of the party leaving it, by his conduct, enables a stranger to discover the mark or number, in consequence of which the bill is delivered out to him, the party leaving it cannot maintain trover for the bill against the party who so delivered it out, Morrison F. Buchanan, 6 C. & P. 18. But see now sect. 41 (1) of this Act, whereby a bill must be presented for acceptance by or on behalf of the holder.

(b) See Byles on Bills (13th Edition) 182; Chalmers' Digest of the Law of Bills of Exchange (2nd Edition), 131.

(c) This is new.

(d) Vide notes (a) and (6) hereto; see also Crowe v. Clay, 9 Ex. 604.

(e) As to such delay, see Brooke's Notary (3rd Edition), p. 73.

Time for pre-
senting bill
payable after
sight.
Ind. Act, ss. 61
and 62.
Ind. Act, ss. 61
and 62.

40.-(1.) Subject to the provisions of this Act, when a bill payable after sight is negotiated, the holder must either present it for acceptance (a), or negotiate it () within a reasonable time (c).

(2.) If he do not do so, the drawer and all indorsers prior to that holder are discharged (d).

(3.) In determining what is a reasonable time (e) within the meaning of this section, regard shall be had to the nature of the bill (f), the usage of trade (g) with respect to similar bills, and the facts of the particular case (h).

Ind. Act, s. 105.

(a) In Fry v. Hill, 7 Taunt. 397, it was held that the holder of an inland bill payable after sight, if he does not circulate it, should present it for acceptance within a reasonable time; and in Mullick v. Radakissen, 9 Moo. P. C. C. 46, it was held that a foreign bill must be presented for acceptance also within a reasonable time.

(6) It was so laid down in Goupy v. Harden, 7 Taunt. 159 ; see also Muilman v. D'Eguino, 2 H. Bl. 565.

(c) As to what is a reasonable time, see sub-section (3) hereof and note (e) thereto.

(d) See note (a) to sect. 39 (1); and note (v) to sect. 36.

(e) This is a question of fact, and depends on circumstances; see sub-sect. (3) of sect. (36) and the notes thereto. As to the duties of an agent in presenting for acceptance and the time when he should do so, see Bank of Van Diemen's Land v. Bank of Victoria, L. R. 3 P. C. 526; 40 L. J. P. C. 28; 19 W. R. 857, where it was laid down that the duty of an agent is to obtain acceptance of the bill, if possible, but not to press unduly for acceptance in such a way as to lead to a refusal, provided that the proper steps are taken within that limit of time which will preserve the rights of his principal against SS, 40, 41. the drawer.

Time for pre(f) In order to determine what is a reasonable time the jury may senting bill take into consideration the situation and interests, not of the drawer payable after only or of the holder only, but the situation and interests of both: sight. per Tindal, C.J., in Mellish v. Rawdon, 9 Bing. 421; see also the judgment of Parke, B. in Mullick v. Radakissen, 9 Moore, P. C. C. 66.

(9) To determine what is a reasonable time one must look at the bill itself, and also take into consideration the ordinary practice relative to such bills, per Lord Tenterden, C.J., in Shute v. Rubins, 3 C. & P. 82.

(h) See the cases in the preceding notes to this section.

and 91.

41.-(1.) A bill is duly presented for acceptance wbich Rules as to

presentment is presented in accordance with the following rules :

for acceptance (a) The presentment must be made by or on behalf of and excuses

for non-prethe holder () to the drawee (y), or to some person sentment. authorised to accept or refuse acceptance (a) on Ind. Act, s. 61. his behalf, at a reasonable hour (w) on a business Ind. Act, s. 75.

day (v) and before the bill is overdue : (b) Where the bill is addressed to two or more drawees, Ind. Act. ss. 34

who are not partners, presentment must be made to
them all (u), unless one has authority to accept for

all, then presentment may be made to him only (t). (@) Where the drawee is dead, presentment may be

made to his personal representative (s) : (d) Where the drawee is bankrupt, presentment may Ind. Act, s. 75.

be made to him or his trustee : (e) Where authorised by agreement or usage, a pre- Ind. Act, s. 75.

sentment through the post-office is sufficient (r). (2.) Presentment in accordance with these rules is excused, and a bill may be treated as dishonoured by nonacceptance(a) Where the drawee is dead, or bankrupt, or is a

fictitious person, or a person not having capacity to

contract by bill (2): (6) Where, after the exercise of reasonable diligence, Ind. Act,

s. 76 (a). such presentment cannot be effected () : (c) Where, although the presentment has been irre

gular, acceptance has been refused on some other

ground.

« 이전계속 »