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to amount to reasonable expectation of payment, so as to entitle the drawer to notice, though there be no actual effects in the drawee's bands.
A drawer who himself made a bill payable at his own house, has been held not entitled to notice, for it might be presumed to be for his own accommodation.
The circumstances above laid down are, it will be seen, not patent on the face of the bill, but dependent on relations between the parties, which may or may not be accurately known to the holder.
It is therefore advisable not to rely on the excuses above mentioned, but, where practicable, to give notice to all parties, except the acceptor or maker.
20. The holder's ignorance of a party's residence will excuse notice of dishonor, provided due diligence be used to find out such residence; and due diligence is a question for a jury.
21. An accident, or an illness happening to the holder will also be an excuse, so long as it incapacitates him from business.
Although a bill be lost, notice of dishonor must be given, for the bill may be paid with or without an indemnity, and may be even sued upon, if an indemnity is given to the satisfaction of the Court.
22. As before observed, where a party has agreed or consented to dispense with notice, the holder will be excused from giving it. And this agreement or consent may be by inference as well as direct expression; as where, before a bill was due, the holder was told by the drawer that he would call at the acceptor's and see if the bill was paid, this was held to dispense with notice of dishonor.
23. At the risk of partial repetition I am bound to quote the recent legislative statement of the rules as to notice being dispensed with wholly or its delay excused.
Delay in giving notice of, dishonor is excused where the delay is caused by circumstances beyond the control of the party giving notice, and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate the notice must be given with reasonable diligence.
Notice of dishonor is dispensed with
(a.) When, after the exercise of reasonable diligence, notice as required by this Act cannot be given to or does not reach the drawer or indorser sought to be charged:
(6.) By waiver express or implied. Notice of dishonor may be waived before the time of giving notice has arrived, or after the omission to give due notice. (c.) As regards the drawer in the following cases, namely, (1) where drawer and drawee are the same person, (2) where the drawee is a fictititious person or a person not having capacity to contract, (3) where the drawer is the person to whom the bill is presented for payment, (4) where the drawee or acceptor is as between himself and the drawer under no obligation to accept or pay the bill, (5) where the drawer has countermanded payment.
(d.) As regards the indorser in the following cases, namely, (1) where the drawee is a fictitious person 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.-B. of Exch. Act, sec. 50.
OF THE ALTERATION OF BILLS AND NOTES.
1. Authority of person in possession of incomplete bill to complete it.
2. When bill complete and issued, material alteration, unless with consent, makes it void.
3. "Issue" defined and illustrated.
4. What is a material alteration.
5. Burden of proof where alteration apparent. 6. Hints for avoiding the difficulty.
1. While a bill or note is incomplete, the person in possession of it is presumed to have authority to fill it up in any material particular in which it is wanting.
For instance, if I write my name across a bill stamp by way of acceptance, and hand it to my creditor without instructions, I have given him authority to insert the date, the period of currency, the amount up to what the stamp covers, and to add his name as drawer, or get another person to do so; and when all this is done I am, as the lawyers say, "estopped," which means precluded 4
from disputing the bill as drawn. So if I fill in any of these particulars he may fill in the rest.
The name of the payee is often left blank, to be filled in afterwards.
If the person to whom I give the blank acceptance exceeds my express directions which I give him, as that the bill is not to be at less than three months, he is responsible to me; but when he has once transferred the bill for value to a person who has no notice of the fraud, I must honor the bill.
2. These things are not alterations in a bill, because the bill is not complete till all these particulars are filled in; but, when the bill is once completed in form and issued, a material alteration, unless made with the consent of all parties liable on the bill, will render the bill void, except as against a party who has himself made, authorised, or assented to the alteration, and subsequent indorsers.
3. "Issue" is defined as being "the first delivery of a bill or note, complete in form, to a person who takes it as a holder." If a creditor draws a bill payable to his order on his debtor, who accepts and delivers the bill to the drawer, it is issued and cannot be altered, but it could have been altered before acceptance, because it had not been passed to any holder for value. So if three persons become parties, as drawer, acceptor, and indorser, for the benefit of a fourth, to whom they hand the document, it can be altered while in the hands of the latter, because it is not yet issued. (See Byles, 12th ed., p. 324.)
4. We now come to what a material alteration is. It is anything that alters the operation of the bill and the liabilities of the parties, whether by making them greater or less. material alteration is now defined by sec. 64 of the B. of Exch. Act, 1882, and the law regarding it stated in the following terms:
Where a bill or acceptance is materially altered without the assent of all parties liable on the bill, the bill is avoided except as against a party who has himself made, authorised, or assented to the alteration, and subsequent indorsers.
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 tenor.
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
5. Where an alteration appears on the face of a bill or note, it lies on the plaintiff who sues on it to show under what circumstances it was made, so as to satisfy the Court whether it was a mere correction of an error, or was made before the instrument was issued (see above, sec. 2), or was a material alteration made after the bill or note was complete, and, if so, whether with the consent of all parties, or not.
6. It is, therefore, advisable that persons drawing a bill or making a note, should make every correction, as far as possible, explain itself, as by passing the pen through a word meant to be omitted, instead of erasing or completely obliterating it.
And if it is impossible to do this, as in the case of the acceptor refusing to accept unless the date or time of currency be altered, it is advisable in practice either to get a new stamp and draw the bill afresh, or, at least, to append a note at the back of the bill, signed by the acceptor, stating the alteration to have been at his request, and before acceptance.
With reference to the amount, if a change should be required, we have already seen under the head " qualified acceptance" (chap. vi) that the acceptor may reduce the amount by accepting for part only.
As to the cancellation of a whole bill or note, or of an individual signature, see antè, cap. x, s. 14.
1. From and to what time.
3. Miscellaneous matters.
1. Interest is seldom expressed to be payable on the face of the bill or note, but when it is so expressed it is
counted from the date of the drawing or making, and it is the same with a bill or note payable at demand.
When the bill or note is silent as to interest, it is counted from maturity, and in the case of a note payable on demand, from demand.
When the first demand made is by commencing an action, the interest is reckoned from the service of the writ. As against an indorser, interest is only counted from delivery of notice of dishonor.
Interest is counted to the time of payment, but ceases after a tender.
2. The offence of usury is abolished, and therefore any amount of interest is recoverable if made payable by the instrument.
If the instrument is silent, 5 per cent. is the amount usually allowed, but if the principal might have been paid earlier but for the negligence of the plaintiff, the Court, or a jury may diminish or altogether withhold interest.
3. If a party is liable by agreement to give a bill (as for the price of goods sold), he cannot escape his liability to interest by not giving the bill.
A party who guarantees the due payment of a bill is liable to interest.
A plaintiff may not only sue for interest originally, but may continue his action for it after the principal has been paid.
OF FORGERY AND FALSE PRETENCES.
2. Penalty for forgery of bills, notes, and cheques.
5. Obtaining signature or destruction of document by violence, &c.
6. Obtaining, &c., by false pretences.
7. Certain acts which amount to forgery.
8. Gertain acts which do not amount to forgery.