CHAPTER XVIII. The party paying a bill or note has a right to insist on its being delivered up to him (s). But, where the bill or note is not negotiable, he cannot refuse to pay it till it is of delivering delivered up (t). It was formerly held (u), that a party paying a debt could not in general demand a receipt for the money, and possibly still a tender, on condition of having a receipt, is insufficient (r). It has, however, been law since 43 Geo. 3, c. 126, s. 5, that a person to whom money has been paid is bound to give a receipt, and that if he refuse to fill up a blank stamp paper presented to him for that purpose, and to pay the stamp, he becomes liable to a penalty of 101. (y). It is usual to write a receipt on the back of bills, and it has been said that it is the duty of bankers to make some memorandum on bills or notes which have been paid (2); and this still requires no stamp; but the exemption in favour of receipts on bills or notes is repealed (a). ~ And a receipt on a distinct piece of unstamped paper, though it cannot be looked at as evidence of the payment, may be shown to a witness who has signed it to refresh his memory, and enable him to speak to the fact of payment (b). A receipt on the back of a bill imports, primâ facie, that it has been paid by the acceptor (c). up the bill. Of giving a receipt. A tender of part of the amount of an entire sum due on Tender of a bill or note seems not to have been good pro tanto (d), part payment. even though the residue were met by a set-off (e). drawee after maturity is primâ facie evidence of payment. See Byles on Bills, 6th American ed. 358. (8) Hansard v. Robinson, 7 B. & C. 90; 9 Dowl. & R. 860; 31 R. R. 166; Powell v. Roach, 6 Esp. 76; Alexander v. Strong, 9 M. & W. 733; Cornes v. Taylor, 10 Exch. 441; Code, s. 52 (4). (t) Wain v. Bailey, 10 A. & E. 616; 2 P. & D. 507. () According to the older authorities, the obligor of a single bond is not bound to pay without an acquittance under seal; otherwise of a bond with condition. Bro. Ab. tit. Faits, pl. 8; 1 Vin. Ab. 192; Fortesc. 145. (r) Green v. Croft, 2 H. Bl. 30; Cole v. Blake, 1 Peake, 238; 3 R. R. 681; post, Chap. XXVI. () Stamp Act, [1891] s. 103 (2). () Per Lord Ellenborough, Burbidge v. Manners, 3 Camp. (a) Stamp Act. Schedule Re- (b) Maughan v. Hubbard, 8 B. & C. 14; 2 Man. & R. 5; 32 R. R. 328. The present Stamp Act [1891] contains an exemption in favour of letters from bankers acknowledging the receipt of bills or notes for presentment or payment. Sched. tit. Receipt. Ex. 2. (c) Pfiel v. Vanbatenberg, 2 (d) Cotton v. Godwin, 7 M. & (e) Searles v. Sadgrove, supra. CHAPTER Plea of pay Retractation A defendant, where payment was pleaded (but not otherwise), was allowed to reduce the damages by the amount of payment established, though he were unable to prove the plea (f). But if he pleaded that a note was given for a part only of the apparent consideration, and alleged payment of that part, and on issue joined the plea was found against him, the plaintiff was entitled to a verdict for the full amount of the note (g). If the drawee discover, after payment, that the bill or of payments. cheque is a forgery, he may in general, by giving notice on the same day, or within a reasonable time, recover back the money (h). And if he have paid the bill with the understanding that he was to receive it back, and do not, he may bring an action to retract the payment (i). And an indorser may sue on a bill which he has been induced by fraud to pay on behalf of the party liable (k). Payment When pay deemed to be perial Bank of Canada v. Bank of Hamilton [1903] A. C.49. Money paid under a mistake of law cannot be recovered back (1); but money paid under a mistake of fact, or even in forgetfulness of a fact, may be recovered back (m). Payment of a bill accepted under a mistake of fact is money paid under such mistake and can be recovered back (n). Money laid down on the counter by a banker's cashier in payment of a cheque cannot be recovered back by action, though it were handed over under a misapprehension of the state of the drawer's account; still less can it be taken back by force from the party receiving it (o). A banker's (f) It is said to have been doubted whether, in an action on a bill or note, a plea of part payment be good even pro tanto. Lord v. Ferrand, 13 L. J., Exch. 111. Sed quære. (g) Robins v. Lord Maidstone, 4 Q. B. 811. (h) In Smith v. Mercer,6 Taunt. 87 16 R. R. 576, Gibbs, C.J., expressly founded his judgment on the ground that the plaintiffs, by not giving notice in due time, had put the defendants in a worse position. Camidge v. Allenby, 6 B. & C. 373; 30 R. R. 358; Smith v. Mercer, L. R., 3 Ex. 51. But if through the delay the holders' position be altered the payment must stand. London and River Plate Bank v. Bank of Liverpool, [1896] 1 Q. B. 7; 65 L. J. 80. in Deutsche Bank v. Bereiro, 1 Com Ca. 255, the plaintiffs (i) Alexander v. Strong, 9 M. (k) Bell v. Buckley, 11 Exch. 631. (1) Kitchen v. Hawkins, L. R., 2 C. P. 22; Rogers v. Ingham, 3 Chan. D. 353. Money paid on an illegal contract partly completed cannot be recovered. Kearley v. Thompson, 24 Q. B. D. 742. 54. (m) Kelly v. Solari, 9 M. & W. (n) Kendall v. Wood, L. R., 6 Exch. 243; 39 L. J. 167. (0) Chambers v. Miller,32 L. J., C. P. 30; Pollard v. Bank of England, L. R., 6 Q. B. 623. XVIII. counter is in the nature of a neutral table, provided for the CHAPTER use of both banker and customer. As soon as the money is laid down by the banker upon the counter to be taken up by the receiver, the payment is complete (p). Where a bill has been protested for non-payment, any person (whether liable thereon or not) 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. Any party to a bill of exchange, whether drawer, drawee, payee, referee in case of need, or any stranger with or without a previous request from the party for whose honour he pays, may intervene and pay supra protest. Should more than one person offer to pay a bill and for the honour of different parties, that person whose payment will discharge most parties shall have the preference, i.e., that person who proposes to pay for the honour of the earliest party to the bill. Where a bill has been paid for honour, all parties subsequent to the party for whose honour it is paid, are discharged, but the prayer for honour becomes holder as against that party and all liable (i.e., previous) to him (2). Payment for honour must be attested by a notarial act appended to the protest or the extension of it, otherwise it will be a mere voluntary payment. This notarial act of honour must be founded on a declaration made by the payer for honour, or his agent, setting forth his intention to pay for honour, and for whose honour he pays (r). The payer for honour, on payment to the holder of the amount of the bill and the notarial charges, is entitled to receive both the bill and the protest; and should the (p) Chambers v. Miller, supra ; unless the holder acquiesce in the retractation. London Banking Co. v. Horsnail, 14 T. L. R. 206; 3 Com. Ca. 105. (4) Code, s. 68. He must, therefore, see that notice of dishonour is duly given to all prior parties. Though the subsequent parties are discharged, the payer for honour may rely on any title they may have. Sub-s. (5). (1) Code, s. 68 (3) and (4). Hence there cannot be a pay ment for honour, even by a PAYMENT SUPRA proTEST OR FOR HONOUR. Requisites to payment for honour. Rights of payer for honour. CHAPTER Consequence of holder refusing. None on promissory notes. holder on demand refuse to deliver them, he will be liable to the payer for honour in damages. The payer for honour succeeds to the title of the holder (even though no indorsement be made to him) as against the acceptor and all prior parties down to and including the party for whose honour payment was made (s). Where the holder of a bill of exchange refuses to receive payment supra protest, he shall lose his right of recourse against any party who would have been discharged by such payment, i.e., all parties subsequent to the one for whose honour payment was offered (†). As no protest is necessary in case of dishonour of a note, whether inland or foreign, there is in general no payment. supra protest (u). ($) Sub-s.(5); Er parte Wackerbath, 5 Ves. 574; Ex parte Swan, L. R., 6 Eq. 344, explaining and overruling Er parte Lambert, 13 Ves. 179; 9 R. R. 169. Without an indorsement to him from the holder, the payer for honour cannot indorse. Poth. Vol. IV., pt. 1, ss. 113-114; Noug. L. D. C. 584-591. (t) Sect. 68 (7). (u) The law merchant as to or payment supra protest does not apply to promissory notes. Story on Notes, s. 453. Whoever, therefore, pays a note for another without authority, express implied, does so at his peril, but may, if the note be indorsed in blank, be a transferee for value, though with notice that the note is overdue and dishonoured; so, too, if it be indorsed to him. CHAPTER THE Code by s. 97 preserves all the rules of the Common Law and the Law Merchant relating to contracts on bills and notes, save those inconsistent with its express provisions. The nature and effect of such dealings with the acceptor or other principal debtor as discharge the drawer or indorser will be discussed in the chapter on principal and surety. Payment in due course is, as we have seen, a discharge of the bill or note; but the rights of the holder against the acceptor or maker and other parties may be satisfied, extinguished or suspended in other ways besides payment. A simple contract may be discharged before breach, SATISFACwithout a release and without satisfaction (a). But after TION. (a) Langden v. Stokes, Cro. Car. 383; Com. Dig. Action on Case in Assumpsit, G.; Cousin & Holland's case, 2 Leo. 214; King v. Gillett, 7 M. & W. 55; Dobson v. |