Payee or Indorsee against Drawer—against Acceptor supra Protest, &c. 379

honour is to be given, not on the day after the bill becomes due, but on the day after that on which the holder after using reasonable diligence is in a position to give the notice. Gladwell v. Turner, L. R., 5 Ex. 61, per Martin, B.

Calling on the indorser the day after the bill becomes due, to know where the drawer lives, and, on his not being in the way, calling again the next day, and then giving the drawer notice, has been considered sufficient. Browning v. Kinnear, Gow, 81. In one case it was held sufficient, on the dishonour of a promissory note, to make inquiry at the maker's house for the residence of the defendant, the payee, and indorser. Sturges v. Derrick, Wightw. 76.

Where the holder is excused by ignorance from giving notice until after the usual day, the common allegation of notice is still sufficient if actually given as soon as possible. Firth v. Thrush, 8 B. & C. 387. But, generally, excuse of any notice does not prove an averment of notice; ante, p. 377.

Account stated.] Where the drawer, knowing the plaintiff to be the indorsee of an overdue bill, promises to pay him it, the plaintiff may recover on an account stated. Oliver v. Dovatt, 2 M. & Rob. 230. See ante, p. 364.

Payee or Indorsee against Acceptor supra Protest, or for Honour.

Statute.] Sect. 15. "The drawer of a bill and any indorser may insert therein the name of a person to whom the holder may resort in case of need, that is to say, in case the bill is dishonoured by non-acceptance or non-payment. Such person is called the referee in case of need. It is in the option of the holder to resort to the referee in case of need or not as he may think fit."

By sect. 65, "(1.) Where a bill of exchange has been protested for dishonour by non-acceptance, or protested for better security, and is not overdue, any person, not being a party already liable thereon, may, with the consent of the holder, intervene and accept the bill supra protest, for the honour of any party liable thereon, or for the honour of the person for whose account the bill is drawn.

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(2.) A bill may be accepted for honour for part only of the sum for which it is drawn.

(3.) An acceptance for honour supra protest in order to be valid must

"(a) be written on the bill, and indicate that it is an acceptance for honour:

(b.) be signed by the acceptor for honour:

(4.) Where an acceptance for honour does not expressly state for whose honour it is made, it is deemed to be an acceptance for the honour of the drawer.

“(5.) Where a bill payable after sight is accepted for honour, its maturity is calculated from the date of the noting for non-acceptance, and not from the date of the acceptance for honour." This provision in italics is new.

Sect. 66. "(1.) The acceptor for honour of a bill by accepting it engages that he will, on due presentment, pay the bill according to the tenor of his acceptance, if it is not paid by the drawee, provided it has been duly presented for payment, and protested for non-payment, and that he receives notice of these facts.

"(2.) The acceptor for honour is liable to the holder and to all parties to the bill subsequent to the party for whose honour he has accepted." Sect. 67. "(1.) Where a dishonoured bill has been accepted for honour

supra protest, or contains a reference in case of need," (vide sect. 15, ante, p. 379) "it must be protested for non-payment before it is presented for payment to the acceptor for honour, or referee in case of need.

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(2.) Where the address of the acceptor for honour is in the same place where the bill is protested for non-payment, the bill must be presented to him not later than the day following its maturity; and where the address of the acceptor for honour is in some place other than the place where it was protested for non-payment, the bill must be forwarded not later than the day following its maturity for presentment to him.

"(3.) Delay in presentment or non-presentment is excused by any circumstance which would excuse delay in presentment for payment or nonpresentment for payment. Vide sect. 46, ante, p. 369.

(4.) When a bill of exchange is dishonoured by the acceptor for honour, it must be protested for non-payment by him."

Sect. 68. (1.) Where a bill has been protested for non-payment, any person may intervene and pay it supra protest for the honour of any party liable thereon, or for the honour of the person for whose account the bill is drawn.

"(2.) Where two or more persons offer to pay a bill for the honour of different parties, the person whose payment will discharge most parties to the bill shall have the preference.

"(3.) Payment for honour supra protest, in order to operate as such and not as a mere voluntary payment, must be attested by a notarial act of honour which may be appended to the protest or form an extension of it.

(4.) The notarial act of honour must be founded on a declaration made by the payer for honour, or his agent in that behalf, declaring his intention to pay the bill for honour, and for whose honour he pays.

(5.) Where a bill has been paid for honour, all parties subsequent to the party for whose honour it is paid are discharged, but the payer for honour is subrogated for, and succeeds to both the rights and duties of, the holder as regards the party for whose honour he pays, and all parties liable to that party.

(6.) The payer for honour on paying to the holder the amount of the bill and the notarial expenses incidental to its dishonour is entitled to receive both the bill itself and the protest. If the holder do not on demand deliver them up he shall be liable to the payer for honour in damages.

(7.) Where the holder of a bill refuses to receive payment supra protest he shall lose his right of recourse against any party who would have been discharged by such payment."

Sect. 96 repeals stats. 2 & 3 Will. 4, c. 98, and 6 & 7 Will. 4, c. 58, and the provisions of those statutes are replaced by the above sections.

As to presentment, vide ante, pp. 365 et seq., and as to protest, vide ante, p. 375. An acceptor for the honour of the drawer is estopped from setting up what the drawer himself would be estopped from setting up, and he cannot therefore dispute the drawer's signature. Phillips v. Îm Thurn, 18 C. B., N. S. 694; L. R., 1 C. P. 463.

Indorsee against Indorser.

In an action by an indorsee against the indorser of a bill, the plaintiff must prove the following matters, if traversed:-1. The indorsement by the defendant; 2. The indorsements between that of the defendant and the plaintiff, when stated in the statement of claim; 3. The presentment

to the drawee or acceptor, and the dishonour; 4. Due notice of the dishonour to the defendant.

As to the requisites of a valid indorsement, see sect. 32, ante, p. 359. As to indorsement in blank and special indorsement, sect. 34, ante, p. 359. As to restrictive indorsement, sect. 35, ante, p. 360.

By sect. 2, "Indorsement means an indorsement completed by delivery." By sect. 21 (1), delivery is necessary to complete an indorsement, -as to what amounts to delivery, see sect. 21 (2), ante, p. 343.

By sect. 55. (2.) The indorser of a bill by indorsing it

(a.) Engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured he will compensate the holder or a subsequent indorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken;

(b.) Is precluded from denying to a holder in due course the genuineness and regularity in all respects of the drawer's signature and all previous indorsements;

(c.) Is precluded from denying to his immediate or subsequent indorsee that the bill was at the time of his indorsement a valid and subsisting bill, and that he had then a good title thereto."

Sect. 56. "Where a person signs a bill otherwise than as drawer or acceptor, he thereby incurs the liabilities of an indorser to a holder in due course."

Sect. 71. "(2.) Where the holder of a set indorses two or more parts to different persons, he is liable on every such part, and every indorser subsequent to him is liable on the part he has himself indorsed as if the said parts were separate bills."

It seems that sect. 56 does not apply to promissory notes; vide ante, p. 242.

As between indorsee and indorser, to make a valid indorsement the holder must not only write his name and manually deliver the bill with intent to transfer the property therein, but he must intend to stand in the ordinary position of indorser, and guarantee payment of the bill, if the acceptor make default. Denton v. Peters, L. R., 5 Q. B. 475. This defence was held to arise on a traverse of the indorsement. S. C. As to now pleading defence specially, vide post, p. 384.

By sect. 20(1), ante, p. 342, a simple signature on blank stamped paper delivered by the signer in order to be converted into a bill, operates as a prima facie authority to fill it up to any amount the stamp will cover, using the signature as that of the drawer, or the acceptor, or an indorser. But, if a signature be fraudulently obtained on the back of a bill, without any intention in the writer to indorse the bill, he will not, unless he has been guilty of negligence, be liable as indorser, even at the suit of a boná fide holder of the bill; and this defence has been held to arise on a traverse of the indorsement. Foster v. Mackinnon, L. R., 4 C. P. 704. In this case the indorsement of the defendant, a very old man, was obtained on the back of a bill, which he was induced to sign under the fraudulent misrepresentation that it was a guarantee, and the court held that the defendant was not liable, if he had been guilty of no negligence.

The Rules, 1883, O. xix., r. 15, ante, p. 301, would probably now require the defences above stated to be specially pleaded.

By sect. 36 (4), a bill is in general presumed to have been indorsed before it became due. A bill being drawn and indorsed in the name of the firm under which defendant and another carried on business, a question arose whether the indorsement was before or after the dissolution of the partnership had been advertised. The bill was dated before the advertise

ment, but the indorsement was not dated. Held, that the date was prima facie the true date, and that it was properly left to the jury to say whether it was indorsed before or after the advertisement; and that, as it was drawn payable to the defendant's own order, the jury might reasonably infer that it was indorsed shortly after the drawing. Anderson v. Weston, 6 N. C. 296. As to indorsement by one of several partners after dissolution, see ante, p. 362.

An indorsement in the form, "pay J. S., or order, value in account with H. C. D.," was, in an action by a subsequent indorsee against the indorser, held not to be a restrictive indorsement; it merely means that value has been received in a certain manner, and has the same effect as if this were stated on the face of the bill. Buckley v. Jackson, L. R., 3 Ex. 135.

In suing an indorser on non-payment of the bill by the drawee, it is unnecessary to state an acceptance; and, if stated, it need not be proved; Tanner v. Bean, 4 B. & C. 312. It is only necessary to prove a presentment for payment at the place, if any, pointed out in the acceptance. Parks v. Edge, 1 Cr. & M. 429. The rules with regard to the presentment of the bill and notice of dishonour are, in general, the same in this action as in an action by the payee against the drawer. See ante, pp. 365

et seq.

No evidence of a demand upon the drawer or prior indorsers is necessary. Bromley v. Frazier, Str. 441; Heylyn v. Adamson, 2 Burr. 669.

By sect. 50" (2.) Notice of dishonour is dispensed with. "(d) As regards the indorser in the following cases, namely, (1) where the drawee is a fictitious person" (vide sect. 2, ante, p. 340) " or a person not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the bill; (2) where the indorser is the person to whom the bill is presented for payment; (3) where the bill was accepted or made for his accommodation."

Proof of notice of dishonour will be dispensed with by a promise of the defendant to pay; Wilkes v. Jacks, Peake, 202; provided it be an unambiguous one; thus, the following letter from the indorser was held not to waive the proof of notice: "I cannot think of remitting till I receive the draft; therefore, if you think proper you may return it to Trevor & Co., if you think me unsafe." Borradaile v. Lowe, 4 Taunt. 93. A promise to pay not made to the plaintiff, but to another person who was holder of the bill at the time, will be sufficient. Potter v. Rayworth, 13 East, 417. So, allowing judgment to go by default in an action brought by the then holder of the same bill dispenses with proof of notice of dishonour. Rabey v. Gilbert, 6 H. & N. 536; 30 L. J., Ex. 170. And see further, ante, pp. 377 et seq., as to what will dispense with proof of notice of dishonour.

By sect. 37, ante, p. 344, where a bill is negotiated back to a prior indorser, such person is not in general entitled to enforce payment of the bill against any intervening party to whom he was previously liable. But circumstances may be specially pleaded, showing that the defendant could not sue the plaintiff on his indorsement. Wilders y. Stevens, 15 M. & W. 208; Wilkinson v. Unwin, 7 Q. B. D. 636, C. A. And, in an action by indorsee against indorser, where the issue was only on the want of notice to the defendant of non-payment by drawee, defendant was not permitted to show that the plaintiff (who had given due notice) and the drawer were one and the same person; the defence should have been specially pleaded. Williams v. Clarke, 16 M. & W. 834.

Although a prior indorser is prima facie liable to indemnify a subsequent one, yet the whole circumstances of the making, &c., of the note or bill

may be referred to in order to show the true relation of the parties inter se, and the relative position of the parties may be thereby altered. Thus, where three directors of a company, in order to become sureties for the company to a bank, successively indorsed three notes of the company, it was held that they were not liable to indemnify each other in accordance to the priority of their indorsements, but were only liable to contribute equally inter se. Macdonald v. Whitfield, 8 Ap. Ca. 733, P. C.

Evidence under money claims.] An indorsement is primâ facie evidence of money lent by the indorsee to his immediate indorser. Kessebower v. Tims, Bayley on Bills, 6th ed., 363. But where the indorser told his indorsee, just before presentment, that the bill would not be paid, that notice need not be sent to him, and that he would send the money on a future day, this was held no evidence on an account stated; it being no proof of a debt due from the indorser at the time of the promise, but only a conditional promise in a certain event. Burgh v. Legge, 5 M. & W. 418. Though as between indorser and his indorsee the bill is evidence of an account stated, this may be rebutted by showing that the defendant indorsed in blank, and delivered it to F., who carried it to the plaintiff to be discounted. Burmester v. Hogarth, 11 M. & W. 97.

Damages Generally.

Statute.] By sect. 57, "Where a bill is dishonoured, the measure of damages, which shall be deemed to be liquidated damages, shall be as follows:

"(1.) The holder may recover from any party liable on the bill, and the drawer who has been compelled to pay the bill may recover from the acceptor, and an indorser who has been compelled to pay the bill may recover from the acceptor or from the drawer, or from a prior indorser

"(a) The amount of the bill:

(b) Interest thereon from the time of presentment for payment if the bill is payable on demand, and from the maturity of the bill in any other case;

(c) The expenses of noting, or, when protest is necessary, and the protest has been extended, the expenses of protest.

"(2.) În the case of a bill which has been dishonoured abroad, in lieu of the above damages, the holder may recover from the drawer or an indorser, and the drawer or an indorser who has been compelled to pay the bill may recover from any party liable to him, the amount of the re-exchange with interest thereon until the time of payment. (3.) Where by this Act interest may be recovered as damages, such interest may, if justice require it, be withheld wholly or in part, and where a bill is expressed to be payable with interest at a given rate, interest as damages may or may not be given at the same rate as interest proper."

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Sect. 57 (1) does not apply to the case of a foreign bill dishonoured and protested here, of which the drawer, A., is liable to the holder in damages for re-exchange; A. may, notwithstanding this section, recover these damages against the acceptor under sect. 97 (2), ante, p. 340. Ex parte Gillespie, 18 Q. B. D. 286, C. A. Where a bill has been dishonoured abroad, sect. 57 (2) limits the damages to the re-exchange and interest thereon, and the holder has no option to recover interest under sect. 57 (1). In re Commercial Bank of S. Australia, 36 Ch. D. 522.