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SS, 57, 58. the retraite or re-exchange bill is now seldom drawn, but the
right of the holder to draw it is settled by the law-merchant of all Measure of damages
nations, and it is only by a reference to this supposed bill that this against parties re-exchange-in other words, the true damages in an action on the to dishonoured original bill—can be scientifically understood and computed ;” Byles bill.
on Bills (13th Edit.), 418. This passage along with that in Story on Bills, section 399, is cited in full in Suse v. Pompe, 8 C. B. N. S. 538; 30 L. J. C. P. 75, where all the authorities are reviewed and discussed. In Willans v. Ayers, 3 Ap. Cas. 133; 47 L. J. P. C. 1, it was held that the right to “ re-exchange,” in the absence of express agreement, arises when the holder of a bill who has contracted for the transfer of funds from one country to another has sustained damages by its dishonour through having to obtain funds in the country where the bill was payable, and “re-exchange" is the measure of those damages. In a recent case it was held that when bill of exchange is dishonoured at maturity, the drawer of the bill is entitled to recover, as against the acceptor, not only the amount of the bill, and interest and notarial and telegraphic charges, but also the re-exchange, Re The General South American Company, Limited, 7 Ch. D. 637; 47 L. J. Ch. 67. This case treated Woolsey v. Crawford (2 Camp. 445) and Napier v. Schneider (12 East, 420) as overruled.
(o) The holder must have done something to disentitle him to interest; Laing v. Stone, 2 M. & R. 561; there must be a default in the holder to deprive him of his right to interest, Cameron v. 2 B. & Ald. 305.
(n) See Keene v. Keene, 3 C. B. N. S. 144, cited in note (s) to this section,
Transferor by 58.-(1.) Where the holder of a bill payable to bearer delivery, and transferee.
negotiates it by delivery without endorsing it, he is called Ind. Act, ss. 14 a “transferor by delivery ” (a). and 47.
(2.) A transferor by delivery is not liable on the instrument (b).
(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 (c).
(a) See notes (h) and (k) to sect. 2 of this Act and note (m) to sect. 3 of this Act.
(6) See Story on Bills, s. 109. Thus in Ex parte Roberts, 2 Cox, Equity Cases, 171, it was held that a mere discount of a bill without the indorsement of the party who receives the money does not give the holder of the bill any claim against him; see also Fenn v. Harri- SS. 58, 59. son, 3 T. R. at p. 761, where Buller, J., said: “The acceptor, the
Transferor by drawer, and the indorsers of a bill are all liable in their turns, but they delivery and are only liable because they have written their names on the bill. But transferee. this is an attempt to make some other persons liable, whose names do not appear on the bill ;” see further the judgment of Park, J., in Evans v. Whyle, 5 Bing. at p. 488; and also notes (h) and (k) to sect. 2 of this Act.
(c) So held: Jones v. Ryde, 5 Taunt. 488; Gurney v. Womersley, 24 L. J. Q. B. 46; Fenn v. Harrison, 3 T. R. p. 761; Camidge v. Allenby, 6 B. & C. 373, at p. 385; Gompertz v. Bartlett, 2 E. & B. 849; Story on Bills, s. 111.
DISCHARGE OF BILL.
59.-(1.) A bill is discharged by payment in due course. Payment in by or on behalf of the drawee or acceptor (x).
Ind. Act, ss. 78 “Payment in due course” means payment made at or & 82, sub-s. (C). after the maturity of the bill (y) to the holder thereof (@) Ind. Act, ss. 10 in good faith and without notice (w) that his title to the & 78. bill is defective.
(2.) Subject to the provisions heinafter contained, when
party is paid by the drawer, the drawer may enforce
reissue the bill (t).
bill payable to drawer's order is paid by the drawer,
(3.) Where an accommodation bill is paid in due course by the party accommodated the bill is discharged (r).
(z) Story on Bills, sect. 269; Fentum v. Pocock, 5 Taunt. 192. “I am of opinion,” said Parke, B., " that nothing will discharge the acceptor or the drawer, except payment according to the lawmerchant, that is, payment of the bill at maturity; if a party pays it
Payment in due course.
before, he purchases it, and is in the same situation as if he had discounted it. The rule is laid down correctly by Lord Ellenborough in Burbridge v. Manners (3 Camp. 194) that a payment before a bill becomes due, does not extinguish it any more than if it were merely discounted ; and that payment means payment in due course, and not by anticipation,” Morley v. Culverwell, 7 M. & W. at p. 182. The cases on the subject of discharge by payment are reviewed in Jones v. Broadhurst, 9 C. B. 173, and so only a few are given below; see also Beck v. Robley, 1 H. Bl. 89, n.; Purssord v. Peek, 9 M. & W. 196 ; Callow v. Lawrence, 3 M. & S. 97; Lyon v. Maxwell, 18 L. T. N. S. 28; if payment is made in the name and on behalf of another without authority, in may be ratified by the debtor, Walter v. James, L. R. 6 Ex. 124. Payment by a stranger of the amount of a bill of exchange to the bankers at whose house the bill is, by the acceptance, made payable, under an arrangement with such bankers, whereby the party paying obtains possession of the bill for a collateral purpose of his own, is not a payment of the bill by the acceptor. Nor can such payment, if made before the bill becomes due, be considered as payment for the honour of an indorser, Deacon v. Stodhart, 2 M. & G. 317. See also Jones v. Broadhurst, 9 C. B. 173; Agra Bank v. Leighton, L. R. 2 Ex. 56; Thornton v.
Maynard, L. R. 10 C. P. 695. These cases were reviewed in a recent case where it was held that the rule that payment by the drawer of a bill to the holder does not discharge the holder's claim against the acceptor does not apply where the bill has been accepted for the accommodation of the drawer, Solomon v.
Davis, 1 Cababe and Ellis, N. P. Rep. 83 (per Stephen, J.). It has been held that part payment of a bill in due course is a discharge pro tanto, Cook v. Lister, 13 C. B. N. S. 543; 32 L. J. C. P. 121, where all the authorities are discussed. See also Bacon v. Searles, 1 H. Bl. 88; Solomon v. Davis, supra.
(y) Story on Bills, s. 217; Harmer v. Steele, 4 Ex. at p. 13; Attenborough v. Mackenzie, 25 L. J. Ex. 244. As to payment of a note payable on demand, see Bartrum v. Caddy, 9 A. & E. 275.
(x) It has been for a long time established that payment should be made to the holder of the bill or note; see sect. 45, sub-sect. 3; the acceptor paying the bill has a right to the possession of the instrument, Hansard v. Robinson, 7 B. & C. at p. 94 ; Robarts v. Tucker, 16 Q. B. 579.
(w) See sect. 90, and the notes thereto; also Story on Bills, sect. 416.
(v) That is to say, the drawer retains his remedy against the acceptor, or the indorser against all parties prior to himself; Jones v. Broadhurst, 9 C. B. 173; Williams v. James, 15 Q. B. 498; 19 L. J.Q. B. 445 ; see also the judgment of Stephen, J., in Solomon v. Davis, supra.
(t) If the bill is drawn payable to the drawer, then the drawer, having paid it, can re-issue it, provided it does not prejudice any of ss. 59, 60, 61,
62. the indorsers; Callow v. Lawrence, 3 M. & S. 95; sub-sect. (6) hereto. (8) See note (t) hereto.
Payment (r) The party accommodated being in the same situation as the in due course. acceptor of a bill for value; Lazarus v. Cowie, 3 Q. B. 459, at p. 465 ; see also Solomon v. Davis, supra.
60.—When a bill, payable to order on demand, is drawn Banker payon a banker, and the banker on whom it is drawn pays draft whereon the bill in good faith and in the ordinary course of indorsement
is forged. business, it is not incumbent on the banker to shew 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 (a).
(a) This section is nearly the same as 16 & 17 Vict. c. 59, s. 19; see also Ogden v. Benas, L. R. 9 C. P. 513 ; Halifax Union v. Wheelwright, L. R. 10 Ex. 183; Arnold v. Cheque Bank, 1 C. P. D. 586; but the customer must not by any act of his contribute to the fraud, forgery, &c. See further the notes to sect. 74 of this Act, title “forged and altered cheques," where the cases are discussed. As to bankers paying cheques which bear marks of having been cancelled, see Ingham v. Primrose, 7 C. B. N. S. 82.
61.-When the acceptor of a bill is or becomes the Acceptor the holder of it at or after its maturity, in his own right, the maturity. bill is discharged (a).
Ind. Act, s. 90. (a) “It appears to us on the authority of the case of Freakley v. Fox (9 B. & C. 130), and on principle, that the fact of the defendant, one of the acceptors being, at the time the bill became due, the holder, and entitled to receive as well as liable to pay the amount of the bill, operated, in respect of all the defendants, as a performance of the contract to pay the bill at maturity, and put an end to the contract of acceptance,” per Wilde, C.J., in Harmer v. Steele, 4 Ex. 1.
62.-(1.) When the holder of a bill at or after (a) its Express maturity absolutely (b) and unconditionally renounces his waivers,
Ind. Act, s. 82, rights against the acceptor, the bill is discharged.
sub-s. (6). The renunciation must be in writing (c), unless the bill is delivered up to the acceptor.
SS. 62, 63.
(2.) The liabilities of any party to the bill may in like manner be renounced by the holder before, at, or after its maturity (d); but nothing in this section shall affect the rights of a holder in due course without notice of the renunciation.
(a) It has been decided that a bill of exchange may be discharged by an express waiver by the holder of his claim, per Parke, B., in Foster v. Dawber, 6 Ex. 851, his lordship saying the rule has often been so laid down and acted upon, although there is no case precisely on the point between immediate parties; see also Dingwall v. Dunster, 1 Doug. 247; Harmer v. Steele, supra.
(6) The renunciation must be express ; vide note (a) hereto.
(c) This is new, for prior to this Act the renunciation need not have been in writing ; vide Byles on Bills (13th Edition), 200. Not only must such renunciation be in writing, but also any parol agreement contemporaneous with a promissory note to the effect that the note, though on the face of it payable on demand, should not be enforced for three years, is inoperative to contradict the terms of the note, Stott v. Fairlamb, 52 L. J. Q. B. D. 420; 47 L. T. N. S. 574, following Woodbridge v. Spooner, 3 B. & Ald. 233, and Abrey v. Crux, L. R. 5 C. P. 37; 39 L. J. C. P. 9.
(d) See Smith v. Knox, 3 Esp. 46; Carstairs v. Rolleston, 5 Taunt. 551; English v. Darley, 2 B. & P. 62; Dingwall v. Dunster, 1 Dougl. at p. 249; see also Martin v. Cole, 14 Otto. Sup. Ct. U. S. 30.
Cancellation. 63.-(1.) Where a bill is intentionally (a) cancelled by Ind. Act, s. 82, the holder or his agent, and the cancellation is apparent sub-s. (6).
thereon, the bill is discharged. Ind. Act, s. 82, (2.) In like manner any party liable on a bill may be sub-s. (6)
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 (b).
(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 (c).
(a) As has been shewn before an acceptor may cancel his acceptance before delivery of the bill (which completes the contract), see