§ 67. Payment for honour supra protest. Payment for honour. would have been discharged if he had paid the bill, are discharged by the holder's laches; but there is no decision in point.1 (3) Delay in presentment or non-presentment is excused by any circumstance which would excuse delay in presentment for payment or nonpresentment for payment. See sect. 46, ante, p. 148, as to excuses for non-presentment and delay; and cf. Nouguier, § 583. (4) When a bill of exchange is dishonoured by the acceptor for honour it must be protested for non-payment by him.2 68. (1) Where a bill has been protested for nonpayment, any person may intervene and pay it suprà protest for the honour of any party liable thereon, or for the honour of the person for whose account the bill is drawn.3 By sect. 93, post, p. 279, it is sufficient if the bill has been noted, although the protest has not been extended. The person for whose account a bill is drawn is commonly called the "third account." When a bill has been paid suprà protest it ceases to be negotiable. Promissory notes are sometimes, though not often, paid suprà protest. Payment for honour is known in Continental countries as payment by "intervention," which expresses its nature as a negotiorum gestio. By French Code, Art. 159, such payment may be made by "tout intervenant." But this 1 Cf. Story v. Batten (1830), 3 Wend. R. 486, New York; German Exchange Law, Art. 60; Nouguier, § 583. 2 Cf. Nouguier, §§ 1320, 1321; Brooks' Notary, 4th ed. p. 108; German Exchange Law, Arts. 62 and 89; Netherlands Code, Art. 181. 3 Geralopulo v. Wieler (1851), 20 L. J. C. P. 105; cf. Ex parte Wyld (1860), 2 De G. F. & J. 642; Brooks' Notary, 4th ed. p. 108. 4 Ex parte Swan (1868), L. R. 6 Eq. 344; Nouguier, § 1026; cf. Deacon v. Stodhart (1841), 2 M. & Gr. at p. 320. has been interpreted to mean any person other than a party already liable on the bill; Nouguier, §§ 1004-1008. The limitation seems reasonable, having regard to the rights acquired by the payor. It seems clear that an acceptor for honour can only pay for the honour of the party for whose honour he accepted. (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.1 (3) Payment for honour suprà 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. This is declaratory.2 (4) The notarial act of honour must be founded on a declaration made by the payor 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 payor 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.3 1 To the same effect, French Code, Art. 159; German Exchange Law, Art. 64. 2 Cf. Ex parte Wyld (1860), 2 De G. F. & J. 642; Brooks' Notary, 4th ed. pp. 108-110, and for forms, see pp. 226-228. 3 Goodall v. Polhill (1845), 14 L. J. C. P. 146, duties, e.g., notice of dishonour; Ex parte Swan (1868), L. R. 6 Eq. 344, rights; cf. Ex parte Wyld § 68. A dishonoured bill is held by the fifth indorsee. If X. pays it suprà protest for the honour of the acceptor, he acquires a right to reimbursement against the acceptor alone; if he pays for the honour of the first indorser, he can sue the first indorser and the drawer (provided they have due notice) and the acceptor, but the second and subsequent indorsers are discharged. Pothier, Nos. 113, 114, points out that the right of the payor is not, properly speaking, a right of action on the bill, but a right arising out of the quasi contract negotiorum gestorum; hence the payor cannot again negotiate the bill, or transfer his rights. (6) The payor 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 payor for honour in damages.1 (7) Where the holder of a bill refuses to receive payment suprà protest he shall lose his right of recourse against any party who would have been discharged by such payment.2 (1860), 2 De G. F. & J. 642; French Code, Art. 159; German Exchange Law, Art. 63. 1 To same effect, German Exchange Law, Art. 63. 2 To same effect, Nouguier, § 1009; German Exchange Law, Art. 62. § 69. Lost Instruments. right to duplicate of lost bill. 69. Where a bill has been lost before it is over- Holder's due, the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving security to the drawer if required to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again. If the drawer on request as aforesaid refuses to give such duplicate bill, he may be compelled to do so. This section reproduces the effect of the repealed 9 & 10 Will. 3, c. 17, s. 3. That Act applied only to inland bills for 51. or upwards. The remedy is still very inadequate, as it gives no power to obtain an indorsement or acceptance over again. The continental codes contain much more elaborate provisions on the subject: see Nouguier, §§ 205, 219; German Exchange Law, Art. 66. Presumably, if the drawer, on tender of indemnity, declined to give a new bill, an action would lie to compel him, and damages might be claimed in the alternative. As to execution of instruments by order of the Court, see 47 & 48 Vict. c. 61, s. 14, post, p. 350. As to bills in a set, see sect. 71, post, p. 235. lost bill. 70. In any action or proceeding upon a bill, the Action on Court or a judge may order that the loss of the instrument shall not be set up, provided an indemnity be given to the satisfaction of the Court or 1 But see Walmesley v. Child (1749), 1 Ves. senr. 341, and Rhodes v. Morse (1850), 14 Jur. 800, cheque. § 70. judge against the claims of any other person upon This section reproduces, with an extension in one direction, the provisions of sect. 87 of the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), set out post, p. 338. That enactment applied only to actions in the Superior Courts. The present section applies to all courts, and to all proceedings, e.g., proofs in bankruptcy. The provision of the Common Law Procedure Act has not been repealed, because it applies to all negotiable instruments, and not merely to bills and notes. "If no tender of an indemnity were made before suit," says Willes, J., "the plaintiff would certainly not obtain relief on such terms as to give him the costs of the suit." 1 At common law, if a negotiable bill or note were lost, no action could be maintained, either on the instrument or on the consideration for it, even if lost when overdue; 3 but if its destruction could be proved, it seems the action would lie.1 By sect. 51 (8), ante, p. 175, protest may be made on a copy of a lost or destroyed bill. The fact that a bill has been lost or destroyed does not excuse the omission to give notice of dishonour. As to presentment to charge drawer and indorsers, see note, ante, pp. 142, 143. By rule 221 of the Bankruptcy Rules, 1886, subject to any special order of the Court, a bill or note must be produced before proof; and by rule 233, subject to the provisions of this section, it must be exhibited before dividend. See post, p. 349. 1 King v. Zimmerman (1871), L. R. 6 C. P. 466. Note the order made in that case. 2 Pierson v. Hutchinson (1809), 2 Camp. 211; Crowe v. Clay (1854), 9 Exch. 604, Ex. Ch. ; aliter, as to a non-negotiable note, Wain v. Bailey (1839), 10 A. & E. 616. 3 Hansard v. Robinson (1827), 7 B. & C. 90. 4 Wright v. Maidstone (1855), 24 L. J. Ch. 623; cf. Edge v. Bumford (1862), 31 L. J. Ch. 805; but see Crowe v. Clay, supra. Thackray v. Blackett (1812), 3 Camp. 164. |