페이지 이미지
PDF
ePub

(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

CH. XVI. s. 2.
Bills of
Exchange

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.

[ocr errors]

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.

SECT. 3.-Cheques on a Banker.

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.

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.

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.

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).

defined.

(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;

CH. XVI. s. 2.

Bills of Exchange.

and as to banker's obligation to pay, see
ante, p. 432 (h).

Holder's right
to duplicate
of lost bill.

Presentment of cheque for payment.

CH. XVI. s. 3.

Cheques on a Banker (Act of 1882).

Revocation of banker's authority.

Crossed

cheques. Protection of banker and drawer.

Effect on holder.

Protection of collecting banker.

Promissory note defined.

S. 75. The duty and authority of a banker to pay a cheque drawn on him by his customer are determined by

(1) Countermand of payment:

(2) Notice of the customer's death.

[Sects. 76-82, which re-enact the Crossed Cheques Act, 1876 (39 & 40 Vict. c. 81), relate to crossed cheques, sects. 80-82 being as follows:—]

S. 80. Where the banker, on whom a crossed cheque is drawn, in good faith and without negligence pays it, if crossed generally, to a banker, and if crossed specially, to the banker to whom it is crossed, or his agent for collection being a banker, the banker paying the cheque, and, if the cheque has come into the hands of the payee, the drawer, shall respectively be entitled to the same rights and be placed in the same position as if payment of the cheque had been made to the true owner thereof.

S. 81. Where a person takes a crossed cheque which bears on it the words "not negotiable," he shall not have and shall not be capable of giving a better title to the cheque than that which the person from whom he took it had.

S. 82. Where a banker in good faith and without negligence receives payment for a customer (x) of a cheque crossed generally or specially to himself, and the customer has no title or a defective title thereto, the banker shall not incur any liability to the true owner of the cheque by reason only of having received such payment (y).

SECT. 4.-Promissory Notes.

Sects. 83-88 of the Bills of Exchange Act, 1882, enact on this subject as follows:

S. 83. (1) A promissory note is an unconditional promise in writing made by one person to another signed by the maker, engaging to pay on demand or at a fixed or determinable future time, a sum certain in money, to, or to the order of, a specified person or to bearer.

(2) An instrument in the form of a note payable to maker's order is not a note within the meaning of this section unless and until it is indorsed by the

maker.

(x) A person accustomed to get cheques cashed at a bank but having no account is not a "customer"; so that a bank cashing for such person a fraudulently obtained "not-negotiable" cheque which is honoured must refund to the drawer: Great Western Rail. Co. v. London and County Banking Co., [1901] A. C. 414, reversing C. A. and Bigham, J.

(y) Bankers are entitled to the proteetion of this section only in cases where they receive payment of crossed cheques as agents for customers: Gordon v. Loadon, City and Midland Bank; Gordon v. Capital and Counties Bank, [1902) 1 K. B. 242, C. A., reversing Bucknill, J., 83 L. T. 762; aff. by H. L., [1903] A. C. 240.

(3) A note is not invalid by reason only that it contains also a pledge of collateral security with authority to sell or dispose thereof (z).

(4) A note which is, or on the face of it purports to be, both made and payable within the British Islands is an inland note. Any other note is a foreign note.

S. 84. A promissory note is inchoate and incomplete until Delivery delivery thereof to the payee or bearer.

necessary.

several notes.

S. 85.-(1) A promissory note may be made by two or more Joint and makers, and they may be liable thereon jointly, or jointly and severally according to its tenor.

(2) Where a note runs "I promise to pay" and is signed by two or more persons it is deemed to be their joint and several note.

S. 86. (1) Where a note payable on demand has been Note payable indorsed, it must be presented for payment within a reasonable on demand. time of the indorsement. If it be not so presented the indorser is discharged.

(2) In determining what is a reasonable time, regard shall be had to the nature of the instrument, the usage of trade, and the facts of the particular case.

(3) Where a note payable on demand is negotiated, it is not deemed to be overdue, for the purpose of affecting the holder with defects of title of which he had no notice, by reason that it appears that a reasonable time for presenting it for payment has elapsed since its issue.

of note for payment.

S. 87.—(1) Where a promissory note is in the body of it made Presentment payable at a particular place, it must be presented for payment at that place in order to render the maker liable. In any other case, presentment for payment is not necessary in order to render the maker liable.

(2) Presentment for payment is necessary in order to render the indorser of a note liable.

(3) Where a note is in the body of it made payable at a particular place, presentment at that place is necessary in order to render an indorser liable; but when a place of payment is indicated by way of memorandum only, presentment at that place is sufficient to render the indorser liable, but a presentment to the maker elsewhere, if sufficient in other respects, shall also suffice.

CH. XVI. s. 4.
Promissory
Notes.

(2) And in Kirkwood v. Carroll, [1903] 1 K. B. 531, C. A., overruling Kirkwood v. Smith, [1896] 1 Q. B. 582, and approving Yates v. Evans (1892), 61 L. J., Q. B. 446, it was held that a joint and several note for payment of 125l. by instalments, the whole to become due on

default in payment of any one instal-
ment, and "no time given to or security
taken from, or composition or arrange-
ment entered into with either party
hereto" to "prejudice the rights of the
holder to proceed against any other
party," was a valid promissory note.

CH. XVI. s. 4.
Promissory
Notes.

Liability of maker.

Application of Part II. to notes.

S. 88. The maker of a promissory note by making it—
(1) Engages that he will pay it according to its tenor;

(2) Is precluded from denying to a holder in due course the existence of the payee and his then capacity to indorse.

S. 89.-(1) Subject to the provisions in this Part and, except as by this section provided, the provisions of this Act relating to bills of exchange apply, with the necessary modifications, to promissory notes.

(2) In applying those provisions the maker of a note shall be deemed to correspond with the acceptor of a bill, and the first indorser of a note shall be deemed to correspond with the drawer of an accepted bill payable to drawer's order.

(3) The following provisions as to bills do not apply to notes; namely, provisions relating to

(a) Presentment for acceptance;

(b) Acceptance;

(c) Acceptance suprà protest;

(d) Bills in a set.

(4) Where a foreign note is dishonoured, protest thereof is

unnecessary.

[For sects. 91 and 97, as to signature and general savings, see p. 430, ante.]

« 이전계속 »