vide § 51 (2); where a bill is accepted for honour, vide § 65; where after acceptance for honour it is presented for payment to the acceptor for honour, vide § 67 (1); and where a bill is dishonoured by the acceptor for honour, vide § 67 (4). (d.) Where there is a course of trade between two places, bills are drawn from the one place to the other for the amount of the debts due to sellers by purchasers. If on a balance of transactions there are more debts due by merchants in A. to merchants in B. than by merchants in B. to merchants in A., the balance due to merchants in B. must be paid by remitting money. Accordingly there is a demand for bills on B. in order to save the risk and expense of remitting coin. A merchant or banker in A., who has money owing to him in B., can sell a draft on his correspondent there for a premium in addition to the sum in the bill, but a banker in B. who has drawn a bill on his correspondent in A. cannot obtain for it the full sum. He must sell it at a discount. This difference between the sum paid and the sum in the bill is called the exchange. When the debts of the two places balance one another the exchange is at par. There is no premium paid, and no discount allowed. Where a bill drawn from one country payable in another, is dishonoured, the holder is entitled to recover the amount in the bill which he ought to have received at the place of payment as well as certain charges. He accordingly draws a bill upon the drawer for such a sum as will yield him the sum in his dishonoured bill by being discounted at the place of payment of the dishonoured bill. If bills on A. are at a discount he draws the bill for the sum in the bill plus the amount of the discount and expenses, and discounts it to receive the amount which he ought to have received, while the drawer has to pay the amount of the discount in addition to returning the sum in the bill. Besides the sum in the bill, which the holder thus obtains payment of, he is entitled to include in the new bill the amount of the charges to which he is put-viz., the stamp on the bill, and the broker's commission. The additional sum for which he draws is called the re-exchange. If bills on A. are at a premium he draws a bill for such a sum as will produce with the premium thereon the sum § 57. § 57. Transferor by delivery and transferee. which he ought to have received, and to plus the foresaid charges, Byles, p. 429. There may be no course of exchange between the place of drawing, and the place of payment, in which case the re-exchange is ascertained by combining the exchange of the place of payment upon a third place, and of that third place upon the place of drawing. If the place of drawing have no exchange with any other place, and be not near any other place with which there is an exchange of bills, there is no re-exchange, and the holder can only claim the sum in bill from the drawer, De Fastet v. Barring, 11 East. 265, Chitty on Bills, p. 440. The holder of a dishonoured bill is not bound to draw upon the drawer in the first place. He can draw up any prior indorser for the amount of the exchange, and the indorser if he pay, can draw for the amount he has paid, plus the discount, so as to recoup himself, or any prior indorser, in a different place, who will in the same manner increase the amount of the re-exchange until the drawer is reached, who thus has to pay the accumulated exchanges between all the different places where the several indorsers reside. In order to entitle the holder to his claim for re-exchange, it is not necessary that he draw a bill for the amount, but he cannot in that case claim for the amount of the stamp and brokerage, Chitty on Bills, p. 438. Re-exchange in some countries is a fixed percentage, and a drawer who has paid such percentage, may recover the amount from an acceptor who has dishonoured a bill by non-payment, in re General South American Company, 7 Chan. Div. 637. 58. (1.) Where the holder (a) of a bill payable to bearer (b) negotiates it by delivery (c) without indorsing it, (d) he is called a "transferor by delivery." (2.) A transferor by delivery is not liable on the instrument (e). 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 (ƒ). (a.) Vide § 2. (b.) A blank indorsed bill is payable to bearer, vide § 34. (d.) A holder of a bill payable to bearer who indorses it (e.) Recourse on the bill cannot be taken against a transferor for delivery either by ordinary action on the bill or by summary diligence. He does not engage that the bill will be accepted or paid, or that he will compensate the holder in the event of the bill being dishonoured. (f) The transferor is, however, liable in an ordinary action at the instance of his immediate transferee being a holder for value, vide § 27 (that is a person who has given value for it, even though he be not a holder in due course), to compensate him (1) if the bill is not what it purports to be— e.g., if the signatures thereto be forged or non-authorised; (2) if he had no right to it—e.g., if he be a finder or a thief; (3) if at the time of transfer he knew any fact that renders the bill valueless-e.g., that the acceptor has absconded, or has become bankrupt or stopped payment, or that the bill has been materially altered. In Gompertz v. Bartlett, 23 L. J., C. P. 65 the defendant transferred for value to the plaintiff a bill payable to bearer without endorsing it. The bill purported to be drawn in Sierra Leone, and to be accepted in London. In point of fact it was both drawn and accepted in London, and being unstamped was rejected in the sequestration of the acceptor as null under the Stamp Act then in force. It was held that the defendant, though not a party to the fraudulent misdescription, was liable to the plaintiff in the price paid for the bill, on the ground that the bill did not correspond to the description under which it was sold. § 58. $ 59. Payment in due course. Discharge of Bill. 59. (1.) A bill is discharged (a) by payment in due course by or on behalf of the drawee or acceptor. "Payment in due course" (b) means payment made at or after the maturity of the bill (c) to the holder (d) thereof in good faith (e) and without notice that his title to the bill is defective (ƒ). (2.) Subject to the provisions hereinafter contained (g), when a bill is paid by the drawer or an indorser it is not discharged; but (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 (h). (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 (2). (3.) Where an accommodation bill is paid in due course by the party accommodated the bill is discharged (j). (u.) A bill may be discharged—(1.)by payment, vide note (b); (2.) by renunciation or acceptilation, vide § 62; (3.) by novation. If a new bill by the same parties, or a bond or other security, be given for the bill, it is discharged, unless the new instrument be given merely by way of security, Twopenny v. Young, 3 B. and C. 208; Allan v. Allan, 1st March, 1831, 9 Sh. 529; Sandeman v. Thomson, 17th Nov. 1831, 10 Sh. 4. (4.) By delegation. If the holder of a bill take in payment bill or note-e.g., a banknote, the obligants in the original bill are released, even though the new bill or note is not paid on presentment, but he will have his right of recourse on the new bill against the person from whom he takes the new bill or note, subject to the conditions stated in § 55, if the latter be a party to it, but not otherwise, and will have no recourse against the transferor by delivery-e.g., of a bank note, vide § 58, Shepherd & Co. v. Bartholomew & Co., 11th June, 1868, 5 S., L. R. 595. If, however, the substituted bill or note is worthless, by being forged, or written on unstamped paper, or materially altered, the first bill will not be discharged. (5.) By compensation. This requires to be pleaded. The counter claim must be liquid, or capable of being instantly verified by writ or oath, Hannay & Sons' Trustee v. Armstrong Brothers, 2nd Feb. 1875, 2 R. 399; 4 R., H. L. 48; 2 Appeal Cases, 83. An acceptance, which is not yet due, cannot be pleaded except in bankruptcy against a claim on a bill, II. Bell's Com. 122-124, vide note on § 97 (1). (6.) By confusion, vide § 61. (7.) By cancellation of the bill. Where some of the signatures are cancelled, the bill is not discharged, vide § 63. The cancellation operates merely a discharge of the liabilities of the parties whose signatures are cancelled, but if the signature of the acceptor is cancelled, the claim of the holder against the other parties liable thereon, is extinguished by material alteration without assent of all parties liable on the bill, vide § 64. (8.) By prescription, vide note (b), § 100. Prescription extinguishes the bill, but does not discharge the debt in the bill. The rules of the law of England, so far as not contained in note (b), § 100, will be found stated in Byles on Bills, pp. 222-244, 342-364, and Chitty on Bills, pp. 212-218, 369. Discharge of an obligant in bankruptcy is not a discharge of the bill, but merely of the liability of the bankrupt. (6.) The holder is not bound to accept a partial payment, $ 59. |