his right to have a protest noted. By his own failure to (k.) The want of a notary will not excuse failure or delay (7.) See note (e) on § 49, and Gladwell v. Turner, L. R. 5, Ex. 59. § 51. holder as 52. (1.) When a bill is accepted generally present- Duties of ment for payment is not necessary in order to render regards the acceptor liable (a). (2.) When by the terms of a qualified acceptance (a) presentment for payment is required, the acceptor, in the absence of an express stipulation to that effect, is not discharged by the omission to present the bill for payment on the day that it matures (b). (3.) In order to render the acceptor of a bill liable it is not necessary to protest it, or that notice of dishonour should be given to him (c). (4.) Where the holder (d) of a bill presents it for payment, he shall exhibit the bill to the person (e) from whom he demands payment, and when a bill is paid the holder shall forthwith deliver it up to the party paying it. (a.) Vide § 19. (b.) If the acceptor qualifies his acceptance by the condition that he will not be liable if the bill is not presented at maturity, or within a limited time thereafter, he will be released from his obligation on the holder's failure so to present. drawee or acceptor. § 52. (c.) Neither protest nor notice of dishonour is necessary, even in the case of a domiciled bill, i.e., a bill payable elsewhere than at the drawer's residence or place of business. This provision applies to the drawer in the cases defined in § 5 (2). (d.) Vide § 2. (e.) If, when presented for payment, a bill is only partially paid, it is usual to note thereon the amount of the partial payment. The holder is only bound to deliver up the bill on full payment. Funds in hands of drawee. Liabilities of Parties. 53. (1.) A bill, of itself, does not operate as an assignment of funds in the hands of the drawee available for the payment thereof, and the drawee of a bill who does not accept as required by this Act is not liable on the instrument (a). This subsection shall not extend to Scotland. (2.) In Scotland, where the drawee of a bill has in his hands funds available for the payment thereof, the bill operates as an assignment of the sum for which it is drawn in favour of the holder from the time when the bill is presented to the drawee (b). (a.) Though this subsection is declared not to extend to Scotland, a drawee in Scotland who has not accepted is not liable to summary diligence on the bill, Watt's Trustees v. Pinkney, 21st Dec. 1853, 16 D. 279, 287; nor to an action, except as provided in subsection (2). (b.) The drawing of a bill is a transference to the payee of the fund drawn upon, completed by presentment. Protest is not necessary, though useful to prove that presentment was duly made, and the time at which it was made. The regularity in the matter of an assignation is the regularity requisite to pass the fund. Even when protest was necessary in order to preserve recourse against the drawer, it was never held that protest was necessary to complete the assignation, though the protest was received as the best evidence of the presentment. Even an irregular presentment may be sufficient, if the drawee enter in his books that it has been presented, Watt's Trustees v. Rinkney, 21st Dec. 1853, 16 D. 279. The right to the fund is therefore independent altogether of the question, whether the holder has preserved recourse against the drawer, but the holder's right depends (1) on the existence of a debt due by the drawee to the drawer, and (2) on that debt being validly assigned. In an action against the drawee it is consequently necessary to sue for the debt due by the drawee to the drawer, and to found on the bill as an assignation of the debt, and not solely on the bill as in the case of an acceptance. If the bill is granted for valuable consideration, passing between the drawer and the payee, it cannot be countermanded by him, and if the drawee refuse to accept or pay, the holder can bring an action of forthcoming against him, or can raise an action of multiplepoinding in his name, Spottiswoode v. M'Neil, 4th Mar. 1778, Mor. 1495; Stewart v. Elliot, 13th Feb. 1794, Mor. 1463. Intimation of the assignation implied in a bill may be made by bringing an action for payment against the drawee, founding on the bill, Watt's Trustees v. Pinkney, supra (p. 288), or by producing the bill in a multiplepoinding, and claiming payment. In Carter v. M'Intosh, 20th Mar. 1862, 24 D. 925, a bill was drawn by two beneficiaries in whom a fund had not vested upon the trustees of the fund to which they had a right. It was presented for payment, but acceptance was refused on the ground that the right to the fund had not vested. After the fund vested in the drawers, the bill was produced in a multiplepoinding, but before decree of ranking was pronounced, the beneficiaries were sequestrated. It was held that the assignation was duly completed by intimation. A cheque or draft upon a banker is in no different position from an ordinary bill. The granter of a cheque may countermand it, and his doing so will free the banker from any obligation to pay, whether that obligation be implied $ 53. $ 53. from the practice of bankers, or rests on special contract. It does not, however, put an end to the assignation implied in a cheque, as well as in any other bill, and if duly presented, the right will be held to be assigned, and the banker be obliged to pay the holder of the bill, notwithstanding a countermand, provided that the granter was not entitled to revoke the cheque. If the cheque be granted for onerous consideration, and that consideration has not failed, the granter is not entitled to revoke. He may, notwithstanding that the cheque is granted for onerous consideration, countermand payment, and his doing so will determine the duty and authority of the banker to pay, vide § 75 (1). It does not, however, deprive the cheque of its value to the holder, who may either sue the drawer on it, or raise a multiplepoinding in name of the banker, and call the granter of the cheque as a defender, in order that he may prove that the cheque was not granted for value. The authority of Waterston v. City of Glasgow Bank, 6th February, 1874, 1 R. 470, so far as proceeding upon the view that there is no presumption of value in the case of a cheque, is overruled by § 71, but may still be referred to as showing that an action cannot be brought against the drawee of a cheque which has been countermanded without calling the granter. Where the granter has no funds in the bank, but the bank has agreed to honour his over-drafts to a certain amount, presentment of a cheque does not operate as an assignment, whether there be a countermand or not, because there is no debt due to the drawer to be assigned. Presentment of a bill of exchange does not operate as an intimated assignation when the drawee has goods in his hands, belonging to the drawer, which have not been realised, because the assignation in a bill is an assignation of money, and not of goods, Bell's Prin. 1465. The money assigned must be in the hands of the drawee. Thus where a bill was drawn by A. upon B., payable at a banker's, presentment at the banker's did not operate as an assignation of money in the banker's hands belonging to the drawer. Macleod v. Crichton, 14th January, 1779, Mor. 16469. The date of presentment determines the preference between § 53. different bills, all of which have been presented to the drawee, Ker v. Chalmers, 1737, Mor. 1465. 54. The acceptor of a bill, by accepting it (1.) Engages that he will pay it according to the tenor of his acceptance (a): (2.) Is precluded from denying to a holder in due course (b): (a.) The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the bill (c); (b.) In the case of a bill payable to drawer's order, the then capacity of the drawer to (c.) In the case of a bill payable to the order of (a.) If the acceptance be general, the acceptor's engagement is to pay the sum for which the bill is drawn at maturity; if qualified, his engagement is only to pay in accordance with the qualifications of his acceptance, vide § 19. (b.) Vide § 29. (c.) The acceptor cannot plead in defence to an action on the bill, that the drawer's signature is forged or non-authorised, even in the case where he has delivered a blank bill stamp with his signature thereon to be filled up, London and South-Western Bank v. Wentworth, 5 Ex. Div. 96. Capacity is defined in § 22. Where a bill is drawn by a partner or an agent, or is expressed to be drawn by procuration, vide § 25, the drawee's acceptance is an admission of the authority of K Liability of acceptor. |