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quivocally that the holder renounces his rights, and not merely an intention which he may or may not carry into effect, but a letter indicating an intention to renounce may show that a subsequent handing of a bill to the acceptor was for the purpose of carrying that intention into effect. Where the acceptor has been released at or after the maturity of the bill, neither the holder nor any one deriving right to the bill through him can claim on the bill, provided that the renunciation be in writing, or if verbal that the bill be delivered up to the acceptor. If the acceptor have the bill in his possession, it is open to him to show by parole evidence, vide § 100, that the rights of the holder have been renounced, but the presumption is that a bill in the hands of the acceptor has been discharged by payment, vide § 52 (4), and consequently the acceptor will not be bound to prove the verbal renunciation until it has been shown that no payment has been made by him. After a bill is overdue, no one can acquire the rights of a holder in due course, vide § 29. The renunciation of the holder's rights against the acceptor, if it be conditional, does not in the meantime take effect, and until fulfilment of the condition there is no discharge of the bill. When the condition is fulfilled it will be held to be an unconditional renunciation. Till the condition has been fulfilled, the holder may be barred from enforcing the bill, though it will not be held that the bill is discharged, and if it is negotiated, the new holder will not be barred from enforcing it either before or after the fulfilment of the condition. In Macvean v. Maclean, 26th June, 1873, 11 M. 764, the holder of certain bills of exchange agreed by letter not to ask payment in consideration of a renewed lease being granted. The lease was threatened to be reduced by the next heir of entail in possession of the estate. It was held that till it was decided, whether a valid lease had been granted by the preceding heir of entail (the acceptor of the bills), the holder could not enforce them, but that if the lease was not reduced, the bill would be discharged; while if the lease was reduced, the holder would still have his claim on the bills. If there are words in the renunciation of the holder's right reserving the holder's rights against the other parties liable on the bill, the bill is not discharged. The discharge to the

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§ 62.

§ 62.

In Crawford

acceptor must be absolute and unconditional. v. Muir, 29th Oct. 1873, 1 R. 91; 2 R., H. L. 148; L. R. 2, Sc. Ap. 456, the holder of a bill, which had been dishonoured at maturity, granted a release to the acceptor as follows : "Received from A. B. the sum of £20 in full of all claims competent to me against the acceptors, all which are hereby renounced and discharged, reserving entire my claims against any obligants other than the acceptors, presently bound to me along with the said acceptors." The Lord Chancellor, Lord Cairns, in delivering the judgment of the House of Lords said, "There is no doubt that by proper and apt instrument, it is competent for the holder of a security of this kind to agree with the principal debtor, not to enforce his remedies against the principal debtor, and if he does that in an instrument, which at the same time reserves his rights against those who are liable in the second degree, there will be no discharge of the persons so liable. The test which has been applied to all these cases is this: Has that which has been done towards the principal debtor been a transaction of this kind, that it will entitle the principal debtor, if he should be sued for contribution or indemnity by the surety, to come to the creditor and say, "You have discharged me completely and entirely from the debt, but I am now sued by a person who was surety, and that is inconsistent with the discharge I have received from you." If, on looking at the discharge, you find that there is nothing inconsistent in it, with a proceeding by the surety afterwards against the principal debtor, then the surety is not in any way discharged." The test laid down by Lord Cairns seems to be fully applicable to the determination of the question under this section, namely, whether the discharge is absolute and unconditional. If it is so expressed, the discharge of the acceptor will discharge the other obligants on the bill, but not if this test shows that the discharge to the acceptor merely amounts to a promise on the part of the holder not to sue him, under reservation of his right to proceed against the drawer and prior indorsers. They are not cut out of their claim of relief against the acceptor by such a discharge as was given in Muir v. Crawford, and are therefore liable to the holder.

(d.) Vide §§ 2 and 90 (1).

§ 62.

(e.) Vide $$ 54, 55, and 56.

(f) Vide § 29.

(g.) The Act does not define notice, but the notice required is not so precise as is required in the case of notice of dishonour. It is accordingly not necessary that the notice be given by, or on behalf of, any party to the bill, nor that it shall be a direct intimation of the renunciation. It is sufficient, if, from any source, before he takes the bill, the holder in due course has knowledge that the bill has been discharged, or that the liability of any particular party has been discharged. In this case he will not only be without recourse against the person whose liability has been discharged, but he is also barred from enforcing the bill against the parties who are discharged by the renunciation of the holder's right against any of the other parties-e.g., by the unconditional discharge of an acceptor who has not paid in full.

63. (1.) Where a bill is intentionally cancelled by Cancellation. the holder (a) or his agent, and the cancellation is apparent thereon, the bill is discharged.

(2.) In like manner any party liable (b) 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.

(3.) A cancellation made unintentionally, or under a mistake, or without the authority of the holder (a), 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).

§ 63.

Alteration of bill.

(a.) Vide § 2.

(b.) Vide $$ 54 and 55.

(c.) Cancellation affects a holder in due course, provided that it be apparent on the bill, because he has thereby notice of the discharge.

"Agent" means an agent of the holder having authority, express or implied, to make the cancellation. Where a bill appears to have been cancelled, summary diligence is incompetent, even though the holder proves that it was made unintentionally, vide note on § 98. By cancellation of the bill, the drawer is discharged of all liability on the bill, but the drawer is not thereby necessarily put in the same position as if the bill had been paid at maturity. In Yglesias v. River Plate Bank, 3 C. P., Div. 60 and 330, the plaintiff obtained from the defendants an advance of £15,000 upon the security of goods then in transit consigned to S., and also of six bills drawn by the plaintiff upon, and accepted by, S. against the shipment. The plaintiff gave the bank a cheque for £2500 and requested them not to sell, and authorised the bank to hold the cheque as collateral security for payment of the bills, to be returned when the bills were paid. Two of the bills were paid, the other bills were then dishonoured, and the plaintiff authorised the bank to sell the goods on non-payment of the bills, and held himself responsible for the deficiency. The bank sued S., and ultimately an arrangement was entered into, by which they cancelled his acceptances and sold the goods. The plaintiff, the drawer, sued the bank for return of the £2500, on the ground that the cancellation of the acceptances was a discharge of the bill, and therefore operated payment to their amount. It was held that the plaintiff was on this state of facts the principal debtor, and that he was not entitled to treat these cancelled acceptances as a payment, though he was discharged from liability on the bills.

64. (1.) Where a bill or acceptance (a) is materially altered without the assent of all parties liable on the bill, the bill is avoided (b), except as against a party

who has himself made, authorised, or assented to the alteration, and subsequent indorsers (c).

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 in due course, such holder may
avail himself of the bill as if it had not been
altered, and may enforce payment of it according
to its original tenour (d).

(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 (e).

(a.) A bill may be altered before issue-i.e., before the first delivery of a bill or note complete in form to a person, who takes it as a holder, vide § 2, because till delivery in order that it may take effect as a bill, there is no completed contract on the bill, vide § 21. Where a bill wanting in any material particular is delivered, the person in possession has a prima facie authority to fill up the omission in any way he thinks fit, vide § 20, but the want of a material particular and consequent incompleteness of a delivered bill in form will not entitle the holder to alter a material part of the bill, because there is already a completed contract on the bill, and the alteration makes a new contract. Where there is a material alteration of the bill after issue, or after delivery of a bill wanting in material point, the new contract in the bill cannot be sued on because it is unstamped, see 33 & 34 Vict. c. 97, Appendix. Bowman v. Nicol, 5 Durnford and East, T. R. 547, 1 Ross, L. C. 698; Home v. Purves, 7th July, 1836, 14 Sh. 898. Where a bill is drawn payable to a third party, delivery of the acceptance to the drawer is not the issue of the

§ 64.

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