3. A bill is indorsed in blank to a firm. Any one of the partners Action on may bring an action on it in his own name.1 bill payable to 4. A bill indorsed in blank is handed to the manager of a com- bearer. pany in payment of a debt due to the company. The manager may sue on it in his own name." 5. A bill indorsed in blank is given to D.'s attorney, who commences an action on it against the acceptor in D.'s name. D. knows nothing of the matter, but after the action has proceeded some way he is told of it, and then gives his consent, D. can maintain the action.s 6. D., the holder of a bill indorsed in blank, does not wish to sue on it in his own name. He accordingly asks E. to sue on it. E. consents. E. gets a copy of the bill and it is agreed that he shall have the original when wanted. E. commences an action against the acceptor, and after action brought he gets the bill. E. cannot maintain this action, for at the time he began it he had neither the actual nor the constructive possession of the bill.* Explanation.-A constructive possession jointly with others is sufficient to entitle the possessor to sue alone. ILLUSTRATION. A note payable to bearer is handed to the solicitor of a loan society in payment of a debt due to the society. D., a member of the society, instructs the solicitor to commence an action on it in his (D.'s) name against the maker. D. can maintain this action." NOTE. As to constructive possession, see Art. 53 n. lost bill. Art. 144. In an action founded on a bill "the Action on "Court or a judge may order that the loss of such in"strument shall not be set up, provided an indemnity "is given to the satisfaction of the Court or judge, or 1 Lindley, p. 302; Attwood v. Rattenbury (1822), 6 Moore 579; Wood v. Connop (1843), 5 Q. B. 292, as to joint holders; Conover v. Earl (1868), 26 Iowa R. 168, as to holders in common. 2 Law v. Parnell (1859), 7 C. B. N. S. 282. 3 Ancona v. Marks (1862), 31 L. J. Ex. 163. 4 Emmet v. Tottenham (1853), 8 Exch. 884; Cf. Olcott v. Rathbone (1830), 5 Wend. 490, New York. Jenkins v. Tongue (1860), 29 L. J. Ex. 147. Action on lost bill. Holder's right of proof. a master, against the claims of any other person upon "such negotiable instrument." Cf. Art. 165. Art. 145. When a party to a bill becomes bankrupt the holder, who could have maintained an action against such party if he had remained solvent, can prove against his estate in bankruptcy.2 Explanation. Any defence, set-off, or counterclaim available in an action is available against a proof.3 NOTE.-In one respect the right of proof is more extensive than the right of action. An action can only be brought to recover a debt or which is due, but under Bankruptcy Act 1869, § 31, a future or contingent debt may be proved; therefore if the acceptor of a bill not yet due becomes bankrupt the holder may prove-so, too, the holder of an accepted bill may prove if the drawer or an indorser becomes bankrupt. But as regards amount, the right to prove is narrower than the right to sue. The amount for which a holder can prove is limited by rules peculiar to bankruptcy, such as the rules relating to double proof and creditors holding security. These it is beyond the provision of the present work to discuss. 6 4 1 17 & 18 Vict. c. 125, § 87. Cf. King v. Zimmerman (1871), 6 L. R. C. P. 466, and see Wright v. Maidstone (1855), 24 L. J. Ch. 624. Cf. 32 & 33 Vict. c. 71, § 31; Cf. Re Charles (1873), 8 L. R. Ch. at 537. 3 See e.g. Rhode v. Proctor (1825), 4 B. & C. 517, want of notice of dishonour; Ex parte Manners (1812), 1 Rose. 68, want of a stamp; Cf. Jones v. Gordon (1877), 2 L. R. Ap. Ca. 627, H. L. 4 Cf. Starey v. Barnes (1806), 7 East. 435. See e.g. Re Douglas (1872), 7 L. R. Ch. 490, foreign bankruptcy. CHAPTER V. DUTIES OF THE HOLDER. considera omission Art. 146. When a party to a bill is discharged Effect on from his liability thereon by reason of the holder's tion of omission to perform his duties as to presentment for of holder's acceptance or payment, protest, or notice of dishonour, such party is also discharged from liability on the consideration for which the bill was given.1 NOTE. The holder's omission, without lawful excuse, to perform his duties with reference to a bill is commonly called "laches." As the Crown can do no wrong, so also it cannot be guilty of laches. duties. Presentment for Acceptance. necessary Art. 147. Presentment for acceptance is neces- When in the case of a bill of exchange payable after oroptional. sary sight. In other cases, in the absence of express stipulations, it is optional.2 ILLUSTRATION. A. draws a bill on B. payable at the "X. bank" three months after date. Presentment to B. for acceptance is not necessary. It is (probably) sufficient to present the bill for payment when due at the X. bank. 1 Byles, pp. 215 and 292, and Arts. 160, 190; Cf. Crowe v. Clay (1854), 9 Exch. 604. Ramchurn v. Radakissen (1854), 9 Moore P. C. at 65, 66; Thomson, p. 276; German Exchange Law, Art. 19 and 24. 3 Walker v. Stetson (1869), 2 Amer. R. 405. When or op tional. NOTE." After sight" means after acceptance (Art. 20), but "at necessary sight" means 66 on demand (Art. 18). Suppose A. draws a bill on B. in Liverpool, payable in London, but not saying where, is not presentment for acceptance necessary? It would be so in France, Nouguier, § 1068. By German Exchange Law, Art. 24, when a bill is drawn payable at the house of a third person the drawer may insert a stipulation requiring presentment for acceptance. In France it seems the drawer or indorser of any bill may insert such a stipulation, Nouguier, § 464-469. Due presentment Art. 148. Due presentment for acceptance is a for accept condition precedent to the exercise by the holder of the rights which arise on dishonour by non-acceptance. (Cf. Art. 157.) ance. By whom. Time for presenting Explanation." Due presentment for acceptance means presentment in accordance with Arts. 149 to 154. NOTE. Subject to Art. 150, Expl. 3, the question of due presentment is only material when acceptance cannot be obtained. If acceptance is obtained the informality of the presentment is immaterial. There is very little English authority on the subject, and it is clear that rules as to presentment for payment do not apply in their entirety to presentment for acceptance. Cf. Art. 155, n. Art. 149. Any person in possession of a bill of exchange may present it for acceptance.1 NOTE. The Court of Appeal in Dec. 1876, dissolved an injunction restraining the drawee from accepting a bill because the holder had obtained it by a fraud. Bills are constantly forwarded unindorsed to an agent for him to procure acceptance. An agent must exercise due diligence in presenting for acceptance. He is liable to his principal for damage resulting from his negligence." Art. 150. The holder of a bill of exchange paybill after able after sight is bound either to negotiate it away or to present it for acceptance within a reasonable sight. 1 Nouguier, § 462; German Exchange Law, Art. 18; Thomson, p. 282; Cf. Morrison v. Buchanan (1833), 6 C. & P. 18, and Art. 28 as to the parts of a set. 2 As to date bills, Pothier, No. 128; Nouguier, § 462; Allen v. Suydam (1838), 20 Wend. 321, New York. As to sight bills, Bank of Van Diemans Land v. Victoria Bank (1871), 3 L. R. P, C. at 542. Cf. Art. 164, n. time. If he omit to do so the drawer and prior in- Time for dorsers are discharged.1 Explanation 1.--Reasonable time is a mixed ques tion of law and fact.2 Explanation 2.--In determining what is a reasonable time regard is to be had to the nature of the bill, the usage of trade with respect to similar bills, and the circumstances of the particular case looking to the interests both of the holder and the drawer.3 ILLUSTRATIONS. 1. A. in Windsor draws a bill on B. in London, payable one month after sight. The holder keeps it four days before presenting it for acceptance. It is then dishonoured. This may not be an unreasonable delay. 2. A. in London draws a bill on B. in Rio, payable sixty days after sight. The payee holds it back for four months, during which time Rio bills are at a discount. He then negotiates it. This may not be an unreasonable delay.5 3. A. in Newfoundland draws a bill (in a set) on B. in London, payable ninety days after sight. The payee holds it back for two months and then forwards it for presentment. No reason for holding back is shewn. This may be an unreasonable delay." 4. A. in Calcutta draws a bill on B. in Hong Kong payable sixty days after sight. The holder retains it for five months, during which time China bills are at a discount. He then negotiates it. This may be an unreasonable delay." Explanation 3.--When there is unreasonable delay the drawer and prior indorsers are (probably) discharged, although the bill when presented is accepted. 1 Mellish v. Rawdon (1832), 9 Bing. 416; Ramchurn v. Radakissen (1854), 9 Moore P. C. 46; Cf. Goupy v. Harden (1816), 7 Taunt. at 163. Cf. Art. 146. 2 Id. 3 Id.; and Wallace v. Agry (1827), 4 Mason 336, Sup. Ct., U. S., Story, J. Fry v. Hill (1817), 7 Taunt. 395; Cf. Shute v. Robins (1828), 2 C. & P. 80. 5 Mellish v. Rawdon (1832), 9 Bing. 416. 6 Straker v. Graham (1839), 4 M. & W. 721. Cf. Art. 28. 7 Ramchurn Mullick v. Radakissen (1854), 9 v. Coulman (1859), 13 Moore P. C. 11. 8 Straker v. Graham (1839), 4 M, & W. 721, Moore P. C. 46; Cf. Godfray presenting bill after sight. |