S. 57. Where a bill is dishonoured, the measure of damages, which shall be deemed to be liquidated damages, shall be as follows: CH. XVI. s. 2. Measure of damages against parties to (1) The holder may recover from any party liable on the bill, and the drawer who has been compelled to pay the bill may recover from the acceptor, and an indorser who has been com- dishonoured pelled to pay the bill may recover from the acceptor or from the drawer, or from a prior indorser (a) The amount of the bill: (b) Interest thereon from the time of presentment for payment if the bill is payable on demand, and from the maturity of the bill in any other case : (c) The expenses of noting, or, when protest is necessary, and the protest has been extended, the expenses of protest. (2) In the case of a bill which has been dishonoured abroad, in lieu of the above damages, the holder may recover from the drawer or an indorser, and the drawer or an indorser who has been compelled to pay the bill may recover from any party liable to him, the amount of the re-exchange with interest thereon until the time of payment. (3) Where by this Act interest may be recovered as damages, such interest may, if justice require it, be withheld wholly or in part, and where a bill is expressed to be payable with interest at a given rate, interest as damages may or may not be given at the same rate as interest proper. bill. S. 58.-(1) Where the holder of a bill payable to bearer nego- Transferor tiates it by delivery without indorsing it, he is called a "transferor by delivery by delivery." (2) A transferor by delivery is not liable on the instrument. (3) A transferor by delivery who negotiates a bill thereby warrants to his immediate transferee being a holder for value. that the bill is what it purports to be, that he has a right to transfer it, and that at the time of transfer he is not aware of any fact which renders it valueless. Discharge of Bill. feree. S. 59.-(1) A bill is discharged by payment in due course Payment in by or on behalf of the drawee or acceptor. "Payment in due course" means payment made at or after the maturity of the bill to the holder thereof in good faith and without notice that his title to the bill is defective. (2) Subject to the provisions hereinafter contained, when a bill is paid by the drawer or an indorser it is not discharged; but due course. CH. XVI. s. 2. Bills of Exchange (Act of 1882). Banker paying demand indorsement is forged. (a) Where a bill payable to, or to the order of, a third party is paid by the drawer, the drawer may enforce payment thereof against the acceptor, but may not re-issue the bill. (b) Where a bill is paid by an indorser, or where a bill payable to drawer's order is paid by the drawer, the party paying it is remitted to his former rights as regards the acceptor or antecedent parties, and he may, if he thinks fit, strike out his own and subsequent indorsements, and again negotiate the bill. (3) Where an accommodation bill is paid in due course by the party accommodated the bill is discharged. S. 60. When a bill payable to order on demand is drawn on a draft whereon banker, and the banker on whom it is drawn pays the bill in good faith and in the ordinary course of business, it is not incumbent on the banker to show that the indorsement of the payee or any subsequent indorsement was made by or under the authority of the person whose indorsement it purports to be, and the banker is deemed to have paid the bill in due course, although such indorsement has been forged or made without authority (q). Acceptor the holder at maturity. Express waiver. Cancellation. S. 61. When the acceptor of a bill is or becomes the holder of it at or after its maturity, in his own right, the bill is discharged. S. 62.—(1) When the holder of a bill at or after its maturity absolutely and unconditionally renounces his rights against the acceptor the bill is discharged. The renunciation must be in writing (r), unless the bill is delivered up to the acceptor (s). (2) The liabilities of any party to a bill may in like manner be renounced by the holder before, at, or after its maturity; but nothing in this section shall affect the rights of a holder in due course without notice of the renunciation. S. 63.—(1) Where a bill is intentionally cancelled by the holder or his agent, and the cancellation is apparent thereon, the bill is discharged. (2) In like manner any party liable on a bill may be discharged by the intentional cancellation of his signature by the holder or his agent. In such case any indorser who would have had a right of recourse against the party whose signature is cancelled, is also discharged. (a) See Bank of England v. Vagliano, [1891] A. C. 107, and p. 432 (h), ante; Gordon v. London, City and Midland Bank; Gordon v. Capital and Counties Bank, [1902] 1 K. B. 242, C. A., and p. 444 (y), post. The banker's liability ordinarily is to his customer, not to the payce. See Marzetti v. Williams (1830), 1 B. & Ad. 415. (2) This alters the common law, by which the renunciation was good without writing, and even without consideration. Foster v. Dawber (1851), 6 Ex. 839. (s) Or his executors or administrator; see Edwards v. Walters, [1896] 2 Ch. 157, in which the delivery of a promissory note to the devisee of the maker was held not to operate as a discharge. (3) A cancellation made unintentionally, or under a mistake, or without the authority of the holder, is inoperative; but where a bill or any signature thereon appears to have been cancelled the burden of proof lies on the party who alleges that the cancellation was made unintentionally, or under a mistake, or without authority. CH. XVI. s. 2. Mode of can cellation. of bill. S. 64. (1) Where a bill or acceptance is materially altered Alteration without the assent of all parties liable on the bill, the bill is avoided except as against a party who has himself made, authorised, or assented to the alteration, and subsequent indorsers (t). Provided that, Where a bill has been materially altered, but the alteration is not apparent, and the bill is in the hands of a holder (2) In particular the following alterations are material, namely, any alteration of the date, the sum payable, the time of payment, the place of payment, and, where a bill has been accepted generally, the addition of a place of payment without the acceptor's assent. for honour S. 65. (1) Where a bill of exchange has been protested for Acceptance dishonour by non-acceptance, or protested for better security, suprà protest. and is not over-due, any person, not being a party already liable thereon, may, with the consent of the holder, intervene and accept the bill suprà protest, for the honour of any party liable thereon, or for the honour of the person for whose account the bill is drawn. (2) A bill may be accepted for honour for part only of the sum for which it is drawn. (3) An acceptance for honour suprà protest in order to be valid must (a) be written on the bill, and indicate that it is an acceptance for honour: (b) be signed by the acceptor for honour. (4) Where an acceptance for honour does not expressly state for whose honour it is made, it is deemed to be an acceptance for the honour of the drawer. (t) The acceptor of a bill owes no duty to the drawer, or to any one taking the bill, other than to pay the bill on presentment, so that if the bill be accepted as presented, the acceptor is not liable, even if negligent, to a holder for value of a bill fraudulently altered after acceptance: Scholfield v. Earl of Londes borough, [1896] A. C. 514, aff. [1895]_1 CH. XVI. s. 2. (5) Where a bill payable after sight is accepted for honour, its maturity is calculated from the date of the noting for (Act of 1882). non-acceptance, and not from the date of the acceptance for Liability of acceptor for honour. Presentment to acceptor for honour. Payment for honour suprà protest. honour. S. 66.—(1) The acceptor for honour of a bill by accepting it engages that he will, on due presentment, pay the bill according to the tenor of his acceptance, 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. (2) The acceptor for honour is liable to the holder and to all parties to the bill subsequent to the party for whose honour he has accepted. S. 67.-(1) Where a dishonoured bill has been accepted for honour suprà protest, or contains a reference in case of need, it must be protested for non-payment before it is presented for payment to the acceptor for honour, or referee in case of need. (2) Where the address of the acceptor for honour is in the same place where the bill is protested for non-payment, the bill must be presented to him not later than the day following its maturity; and where the address of the acceptor for honour is in some place other than the place where it was protested for nonpayment, the bill must be forwarded not later than the day following its maturity for presentment to him. (3) Delay in presentment or non-presentment is excused by any circumstance which would excuse delay in presentment for payment or non-presentment for payment. (4) When a bill of exchange is dishonoured by the acceptor for honour it must be protested for non-payment by him. S. 68. (1) Where a bill has been protested for non-payment, any person may intervene and pay it suprà protest for the honour of any party liable thereon, or for the honour of the person for whose account the bill is drawn. (2) Where two or more persons offer to pay a bill for the honour of different parties, the person whose payment will discharge most parties to the bill shall have the preference. (3) Payment for honour suprà protest, in order to operate as such and not as a mere voluntary payment, must be attested by a notarial act of honour which may be appended to the protest or form an extension of it. (4) The notarial act of honour must be founded on a declaration made by the payer for honour, or his agent in that behalf, declaring his intention to pay the bill for honour, and for whose honour he pays. Lost Instruments. S. 69. Where a bill has been lost before it is overdue, the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving security to the drawer if required to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again. If the drawer on request as aforesaid refuses to give such duplicate bill, he may be compelled to do so. CH. XVI. s. 2. Holder's right lost bill. S. 70. In any action or proceeding upon a bill, the Court or a Action on judge may order that the loss of the instrument shall not be set up, provided an indemnity be given to the satisfaction of the Court or judge against the claims of any other person upon the instrument in question. SECT. 3.-Cheques on a Banker. By the Bills of Exchange Act, 1882 S. 73. A cheque is a bill of exchange drawn on a banker Cheque payable on demand (u). Except as otherwise provided in this Part, the provisions of this Act applicable to a bill of exchange payable on demand apply to a cheque. S. 74. Subject to the provisions of this Act- (1) Where a cheque is not presented for payment within a reasonable time of its issue, and the drawer or the person on whose account it is drawn had the right at the time of such presentment as between him and the banker to have the cheque paid and suffers actual damage through the delay, he is discharged to the extent of such damage, that is to say, to the extent to which such drawer or person is a creditor of such banker to a larger amount than he would have been had such cheque been paid. (2) In determining what is a reasonable time regard shall be had to the nature of the instrument, the usage of trade and of bankers, and the facts of the particular case. (3) The holder of such cheque as to which such drawer or person is discharged shall be a creditor, in lieu of such drawer or person, of such banker to the extent of such discharge, and entitled to recover the amount from him. (u) See McLean v. Clydesdale Banking Co. (1883), 9 App. Cas. 95; Bellamy v. Marjoribanks (1852), 7 Ex. at p. 404; and as to banker's obligation to pay, see defined. Presentment of cheque for payment. |