Defence by Acceptor.

The defendant A. B. says:

1. He did not accept the bill.

2. If he accepted the bill, he did so and delivered it to the drawer without consideration for the purpose of the drawer (the defendant C. D.) getting it discounted for this defendant, and the drawer, in fraud of this defendant, and contrary to the said purpose, indorsed the bill without consideration.

3. The bill was indorsed to the plaintiff when overdue. 4. The bill was indorsed to the plaintiff with notice of the said fraud.

Defence by Drawer.

The defendant C. D. says:

1. He did not indorse the bill of exchange to the plaintiff. 2. The bill was not presented for payment.

3. This defendant had not due notice of dishonour.

4. The plaintiff was not the holder at the commencement of the action.

Indorsee against Acceptor on a Bill accepted payable at a particular Place and not elsewhere.

On May 31, 1883, the defendants accepted a bill of exchange for £500 drawn by A. and payable three months after date to A. or his order at Messrs. J. & Co.'s banking house, L. Street, London, and not otherwise or elsewhere; and

interest, it is payable only from the time when the instrument became due. Upon a bill or note payable on demand generally, not specifying interest, interest is given from the time of demand proved (Blaney v. Hendricks, 2 W. Bl. 760; In re East of England Banking Co., L. R. 6 Eq. 368; affirmed, L. R. 4 Ch. 14); and where no demand is proved, from the issuing of the writ. (Pierce v. Fothergill, 2 Bing. N. Č. 167.) The indorsee of a bill may sue the acceptor for interest although he has taken another bill from the defendant for the amount of the first, which has been duly paid. (Lumley v. Musgrave, 4 N. C. 9.)

Rate of The rate of interest allowed on inland bills is £5 per cent., unless interest another rate is mentioned in the bill or note. (Keene v. Keene, 27 L. J. chargeable. C. P. 88.) On foreign bills interest is recoverable at the rate of interest at the place where the bill was drawn, accepted, or indorsed, as the case may be, according to the liability of the party sued. (Allen v. Kemble, 6 Moore, P. C. 314; Gibbs v. Freemont, 9 Ex. 25.)

the said bill of exchange has been indorsed to the plaintiff, but upon being duly presented it was dishonoured.

The following are particulars of the plaintiff's claim :

The defendant says:

1. A. did not indorse the bill.

2. The plaintiff is not the holder of the bill.

3. The bill was accepted for the accommodation of A., the drawer, and, if indorsed to the plaintiff at all, was indorsed to him without consideration.

4. The bill was never presented at Messrs. J. & Co.'s banking house, L. Street, London,

Indorsee against Drawer for Default of Acceptance (a).

1. The defendant, on the 1st of May, 1883, drew a bill of Claim exchange upon C. F. of Y., for £1000, payable to the order of drawer for against

(a) By s. 55 of the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), it is provided that the drawer of a bill by drawing it (a) engages that on due presentment it shall be accepted and paid according to its tenour, and that if it be dishonoured he will compensate the holder or any indorser who is compelled to pay it, provided that the requisite proceedings on dishonour (e.g. notice) be duly taken, and (b) is precluded from denying to a holder in due course the existence of the payee and his then capacity to indorse.

non-acceptance by

drawee.

ment for acceptance.

A presentment for acceptance is not necessary except in the case of Presentbills payable at or after sight (Bayley on Bills, 6 ed. 215); as the drawee is not liable on the bill till he accepts it, it is always desirable as soon as possible to present the bill for acceptance that his name may be got on to it. The drawee may require that the bill should be left with him for twenty-four hours before determining whether he will refuse or accept (Van Diemen's Land, Bank of, v. Victoria, Bank of, L. R. 3 P. C. 526, 543); and even though the drawee may have put his name on to the bill, he may cancel or revoke his acceptance before he parts with the bill. (Cox v. Troy, 5 B. & Ald. 474.) If the drawee refuse to accept the bill according to its terms, an action on the bill lies against the drawer, or any indorser immediately, although the time of payment is not come. (Milford v. Mayer, 1 Doug. 55; Whitehead v. Walker, 9 M. & W. 506.) But to ground the action as against the drawer or any indorser, due notice of the refusal to accept must be given, and if notice is not given, the effect is that the parties liable on the bill are discharged. (Roscoe's Nisi Prius,

Present

ment of bill payable a certain time

Messrs. H. F. Brothers, of B., one month after date, and it was by them indorsed to the plaintiff who duly presented the same to the said C. F. for acceptance; but he refused to accept the same, whereof the defendant had due notice.

The plaintiff claims £1000 and £27 for interest up to the commencement of this action, and interest at the rate of £4 per cent. until payment or judgment.

Indorsee against Drawer of Bill of Exchange (a).

1. The plaintiff's claim is against the defendant as drawer of a bill of exchange for £50, dated Sept. 7, 1883, drawn upon

13th ed. 366.) In the statement of claim the presentment of the bill for acceptance, and the notice of dishonour should be distinctly averred as essential to the cause of action; if they are excused on any ground the matter of excuse must be specially averred. (Burgh v. Legge, 5 M. & W. 418, 421.)

As already stated, a bill payable at a certain time after sight or at sight, must be presented for acceptance. This is necessary in order to fix the time of payment, for the sight by which the time of payment is regulated, is that of the drawee when the bill is presented to him for acceptance. There is no rule requiring a bill to be presented for acceptafter sight. ance within so many days or weeks after it is issued, and it may very well happen that a bill may circulate for some time and obtain on its back the names of half a dozen indorsers before it is seen by the drawee, and before therefore it has been accepted. The only rule upon the subject is that the bill should be presented for acceptance within a reasonable time, but what a reasonable time is, depends upon the circumstances of each case, and is a mixed question of fact and law. (Mellish v. Rawdon, 9 Bing. 416; Mullick v. Radakissen, 2 Moo. P. C. 46. See also Chartered Mercantile Bank of India, &c., v. Dickson, L. R. 3 P. C. 574.)

Acceptor primarily liable.

Present

ment for payment days of grace.

(a) The acceptor is the party primarily liable on a bill of exchange, by which is meant that the holder of the bill at the time it falls due must seek payment from him before he resorts to the drawer or any of the indorsers where there are indorsers. (45 & 46 Vict. c. 61. s. 47.) The drawer and indorsers are spoken of as being sureties for the payment of the bill, and as only liable on the default of their principal. It is necessary, therefore, to the plaintiff's cause of action, when he is suing on a bill against the drawer or the indorsers, that he should duly present the bill for payment when it falls due. As is well known, on bills of exchange and promissory notes days of grace are allowed; and in the case of inland bills or notes the time to present a bill for payment is on the third day after, and exclusive of the day of becoming due. (Tassell v. Lewis, 1 Ld. Raym. 743.) When the last day of grace falls on a Sunday or Christmas Day, or on a Good Friday, or on a Fast-day, it is to be presented on the day next before those respective days; but by the Bank Holidays Act, 1871 (34 & 35 Vict. c. 17), when the last day falls on a bank holiday, the presentment is to be on the next following day. Presentment must be made, although the acceptor has become bankrupt, and where he is dead, it must be made to his executors or administrators, or if there be none, at the house of the deceased. (Chitty on Bills, 9th edit. 339.) A bill payable at a banker's must be presented within banking hours (Parker

and accepted by X. Y., payable to the order of the defendant three months after date, and indorsed to the plaintiff.

2. The bill was duly presented for payment and dishonoured, whereof the defendant had notice.

1. The bill was drawn for the accommodation of W. G. The defendant received no consideration for drawing it.

2. The defendant paid the amount due on the bill to the holder, one L. V., at maturity.

3. L. V. negotiated the bill when overdue in fraud of the defendant.

4. The defendant received no notice of dishonour.

v. Gordon, 7 East, 385); but presentment to a banker's clerk at the clearing house is sufficient (Reynolds v. Chettle, 2 Camp. 596); and presentment at cight in the evening at the private residence of a merchant is good. (Barclay v. Bailey, 2 Camp. 527.) It has been already stated (ante, 169) that where a bill has been accepted payable at a particular place, in order to charge the acceptor, it is not necessary to present the bill for payment at that place unless it was made payable there and not elsewhere; but in order to charge the drawer or any indorser, it is otherwise, for where a bill is drawn or accepted payable at a particular place, the drawer or indorser can only be rendered liable upon presentment and dishonour at that place. (Gibb v. Mather, 8 Bing. 214; Saul v. Jones, 28 L. J. Q. B. 37.) In an action against the drawer or indorser not only must the plaintiff aver due presentment for payment and dishonour, he must also aver that the defendant had due notice of the same. As to what constitutes a good notice of dishonour, see post.

By s. 46 of the statute 45 & 46 Vict. c. 61, it is provided :-
(1) Delay in making presentment for payment is excused when the
delay is caused by circumstances beyond the control of the holder, and
not imputable to his default, misconduct, or negligence. When the cause
of delay ceases to operate presentment must be made with reasonable
diligence.

(2) Presentment for payment is dispensed with:
(a) Where after the exercise of reasonable diligence presentment as
required by this Act cannot be effected. The fact that the
holder has reason to believe that the bill will on presentment
be dishonoured, does not dispense with necessity for present-
ment.

Where pre

sentment

to be made.

What ex

cuses from notice of dishonour.

Circumstances excusing non-notice to be stated in pleading.

Reply in an Action by Indorsee against Drawer excusing Want of Notice of Dishonour which has been set up by the Defendant (a).

1. A. B. had no effects of the defendant, nor was there any consideration for the payment of the said bill by the said A. B.

(b) Where the drawee is a fictitious person.

(c) As regards the drawer, where the drawee or acceptor is not bound, as between himself and the drawer, to accept or pay the bill, and the drawer has no reason to believe that the bill would be paid if presented.

(d) As regards an indorser, where the bill was accepted or made for the accommodation of that indorser, and he has no reason to expect that the bill would be paid if presented.

(e) By waiver of presentment express or implied.

(a) Notice of dishonour to the drawer is unnecessary, if he had not at the time of drawing, or before the time of the bill becoming due, any effects either in the hands of the drawee or consignee, or on their way to him (Bickerdike v. Bolman, 2 Smith, L. C., 7th ed. 50); nor a reasonable expectation of having any. (Claridge v. Dalton, L. M. & S. 226.) The Courts, however, are disinclined to dispense with notice of dishonour, and evidence that the drawer had any effects in the hand of the acceptor, though he owes him for more than the value of those effects (Blackham v. Doren, 2 Camp. 503) will necessitate an averment and proof of notice of dishonour; and in general where the drawer would have any remedy over against a third person (as in the case of a bill drawn for the accommodation of a person to whom he indorses it), notice must be alleged. (Cory v. Scott, 3 B. & Ald. 619; Laffitte v. Slatter, 6 Bing. 623.) "The rule is that when a person is entitled to notice of dishonour no excuse is sufficient to obviate the necessity of such notice, unless the defendant can have no remedy over." (Brett,L. J., in Turner v. Samson, 46 L. J. Q. B., C. P. & Ex. D. 167; 2 Q. B. D. 23; 35 L. T. 537; 25 W. R. 240.) The doctrine already stated, as applied to the case of a drawer, will not be extended to an indorser, unless the facts make it quite clear to an absolute certainty that such indorser could not have been damnified by want of notice. (Foster v. Parker, 46 L. J. Q. B., C. P. & Ex. D. 77; 2 C. P. D. 18; 25 W. R. 321.) Whenever the want of notice is excused, the circumstances relied upon as the excuse must be stated in the statement of claim (Burgh v. Legge, 5 M. & W. 418); but a mere delay in giving notice of dishonour, unavoidable or reasonable, in the circumstances of the particular case, need not be specially excused, but may be averred as due notice of dishonour. (Firth v. Thrush, 8 B. & C. 387; Lundie v. Robertson, 7 East, 231.) The effect of a promise to pay a dishonoured bill has been stated thus by Byles, J.: "A promise to pay may operate either as evidence of notice of dishonour, or as a prior dispensation, or as a subsequent waiver of notice. Whether made after, or even before, the time for giving notice has expired, a promise to pay is always evidence from which a jury may infer due notice. But even where the evidence is conclusive to show that due notice was not given, or where the jury refuses to draw the inference that it was given, yet a promise to pay made within the time for giving notice is a dispensing with notice, and made after that time is a waiver of notice." (Cordery v. Colville, L. J. 32 C. P. 210.) Where a promise to pay is relied on as excusing notice of dishonour, it ought to be expressly alleged in the statement of claim either as a dispensing with notice or a waiver of