186. A bill may be indorsed conditionally, and if, after such conditional acceptance, the drawee accepts it and pays it without the condition being fulfilled, he is liable to pay it again to the payee. Robertson v. Kensington, 4 Taunt., 30. 187. If a bill be reindorsed to a previous indorser he has no action against the intermediate indorsers (a). Unless there are special circumstances which would prevent them from suing him (b). (a) Bishop v. Hayward, 4 T. R., 470. Butten v. Webb, 2 B. & C., 483. (b) Wilders v. Stevens, 15 M. & W., 208. Morris v. Walker, 15 Q. B., 589. Boulcott v. Woolcott, 16 M. & W., 584. Williams v. Clarke, 16 M. & W., 834. 188. An indorser may exempt himself from liability by adding the words " sans recours," or "without recourse to me," or similar words. He may also exempt himself from personal liability to his immediate indorsee by an agreement, written or oral. But this would not affect a holder for value without notice. Pike v. Street, 1 M. & M., 226. Thompson v. Clubley, 1 M. & W., 212. Castrigue v. Buttigieg, 10 Moore, P. C. Ca., 94. 189. Striking out an indorsement intentionally discharges the indorser (a): but not if done by mistake (b). (a) Fairclough v. Pavia, 9 Ex., 690. (b) Wilkinson v. Johnson, 3 B. & C., 428. 190. The rules relating to the transferee's title to lost or stolen instruments have been given already in Chapter XIII., s. 4. 191. A trust may be expressed on the face of the bill, or in the indorsement. Evans v. Cramlington, Carth., 5. Snee v. Prescott, 1 Atk., 247. Ancher v. Bank of England, 2 Doug., 637. Edie v. East India Co., 2 Burr., 1227. Treuttel v. Barandon, 8 Taunt., 100. Sigourney v. Lloyd, 8 B. & C., 622; affirmed 5 Bing., 525. 192. The transferee of a bill held in trust cannot retain it against the true owner (a): and if the acceptor is obliged to pay it he may recover the amount from the depositary (b). (a) Goggerly v. Cuthbert, 2 N. R., 170. Evans v. Kymer, 1 B. & Ad., 528. Robson v. Rolls, 1 M. & Rob., 239. (b) Bleadon v. Charles, 7 Bing., 246. 193. If a person holds a Bill or Note merely as the agent of another person, he has only the title of his principal. Solomons v. Bank of England, 13 East., 135. 194. For the rules relating to the transfer of instruments by delivery, without indorsement, see §§ 22, 23, 45, 108. 195. 1. If an indorsee gives value for a bill which has been refused acceptance, without knowledge of the fact, he has the usual remedies against the parties to it (a). 2. But if he takes it with knowledge that it has been refused acceptance, he can only charge his immediate indorser (b). (a) O'Keefe v. Dunn, 6 Taunt., 305; affi. 5 M. & S., 282. Whitehead v. Walker, 9 M. & W.. 506: 10 M. & W., 696. (b) Crossley v. Ham, 13 East, 498. Bartlett v. Benson, 16 M. & W., 696. On Presentment for Payment. 196. A Bill or Note must be duly presented for payment; for if not, all the parties to it, except the acceptor or maker, are discharged. Personal demand on the drawee, acceptor, or maker is not necessary: demand at his residence or usual place of business is sufficient. If he changes his residence he is bound to leave funds on the premises to meet the bill. 197. Brown v. Macdermot, 5 Esp., 265. Saunderson v. Judge, 2 H. Bla., 510. Buxton v. Jones, 1 M. & G., 83. Hine v. Allely, 4 B. & Ad., 624. Demand must be made even though the drawee or acceptor is bankrupt (a); or even if he declares in the presence of the drawer that he will not pay the bill (b). (a) Russell v. Langstaffe, 2 Doug., 514. Nicholson v. Gouthit, 2 H. Bla., 610. Ex parte Johnstone, 1 Mont. & Ayr., 622. Esdaile v. Sowerby, 11 East., 114. (b) Ex parte Bignold, 1 Deac., 728. 198. If the drawee or acceptor is dead presentment should be made to his representatives; and, if he has none, at his house. 199. Presentment for payment is not necessary to charge the guarantor of a Bill or Note. Hitchcock v. Humfrey, 5 M. & G., 559. Walton v. Mascall, 13 M. & W., 453. Warrington v. Furbor, 8 East, 242. 200. The word month in Bills and Notes means a calendar or solar month. Cockell v. Gray, 3 B. & B., 186. 201. When drawn so many days after date or sight, it excludes VOL. II. 2 M the day on which the instrument is drawn and includes the day on which it becomes due. Coleman v. Sayer, 1 Barnard., 303. 202. On days of grace see § 21. 203. Bills and Notes payable on demand, sight, or presentation, must be presented within a reasonable time. What is reasonable time depends upon the circumstances of the case; and is a mixed question of law and fact, for the determination of the Court and jury. Manwaring v. Harrison, 1 Stra., 508. Hankey v. Trotman, 1 W. Bla., 1. Godfray v. Coulman, 13 Moo. P. C. Ca., 11. Mullick v. Radakissen, 9 Moo., P. C. Ca., 46. Muilman v. D'Eguino, 2 H. Bla., 565. Fry v. Chapman, 7 Taunt., 397. Mellish v. Rawdon, 9 Bing., 417. Goupy v. Harden, 7 Taunt., 159. Straker v. Graham, 4 M. & W., 721. 204. Usance is a period which in early times was appointed as the usual time between different countries. When usance is a month, half usance is always 15 days. Usance between London and— 1. Aleppo, Altona, Amsterdam, Antwerp, Brabant, Bruges, Flanders, Geneva, Germany, Holland, the Netherlands, Lisle, Paris and Rouen-is one month. 2. Spain and Portugal-two months. 3. Italy-three months. 205. The Act 1 & 2 Geo. 1 (1821), c. 78, does not apply to promissory notes. Hence if a promissory note is made payable at a particular place in the body of it, it must be presented there for payment (a). But not if a place be merely mentioned in a corner as a memorandum (b). (a) Saunderson v. Bowes, 14 East., 500. (b) Williams v. Waring, 10 B. & C., 2. 8 C. B., 433. Dickinson v. Bowes, Emblin v. Dartnell, 384. Vanderdonckt Price v. Mitchell, 4 206. A Bill drawn or accepted payable at a particular place must be presented there to charge the drawer or indorser. Gibb v. Mather, Bing., 214. Saul v. Jones, 1 E. & E., 59. Harris v. Parker, 3 Tyrw., 370. Buxton v. Jones, 1 M. & G., 83. 207. Promissory notes payable on demand are often intended to be continuing securities: and whether any unnecessary delay has taken place in presenting them for payment must be determined in each case by the Court and Jury. Brooks v. Mitchell, 9 M. & W., 15. Chartered Mercantile Bank of India, &c., v. Dickson, L. R., 3 P. C., 574. On the Extinguishment of Bills and Notes. 208. The liability of parties to Bills and Notes may be discharged and extinguished by WAIVER, or DISCHARGE, by RELEASE, and by PAYMENT and SATISFACTION, JUDGMENT, EXECUTION, and MERGER. Of Waiver. 209. The holder or any of the parties to a Bill or Note may discharge any of the parties antecedent to himself by an express renunciation, either orally or in writing; either before or after it has become due; and without consideration. Whatley v. Tricker, 1 Camp., 35. Dingwall v. Dunster; Black v. Peel; Walpole v. Pulteney, Doug., 247. Farquhar v. Southey, M. & Mal., 14. Cartwright v. Williams, 2 Stark., 340. Ellis v. Galindo, Doug., 250. Steele v. Harmer, 4 Ex., 1. Foster v. Dawber ; Mayhew v. Cooze, 6 Ex., 581. 210. If the waiver be not for the whole amount and unconditional there must be a consideration. Parker v. Leigh, 2 Stark., 228. Owen v. Pizey, 11 W. R. C. 21. Of Release. 211. A Release under seal may be given which requires no consideration. 212. 1. The Release of a Debt by one of the several joint Creditors discharges the Debtor from his liability to all the Creditors (a). 2. But if the release is given in fraud of the other creditors, the Courts will set it aside (b). 3. If a Creditor gives a release of the DEBT to one of the several joint debtors, the debt is extinguished, and all the joint debtors are discharged (c). 4. A covenant not to sue one joint debtor is a release to him; but it does not discharge the other joint debtors (d). 5. Where deeds are drawn relieving one of several joint debtors, but expressly reserving the remedies against the others, the Courts invariably hold them to be mere covenants not to sue the debtor, but not a release of the debt (d). (a) Ruddock's case, 6 Co. Rep., 25a. Jacomb v. Harwood, 2 Ves., sen., 267. Barker v. Richardson, 1 Y. & Jer., 362. L. R., 7 Eq., 28. Webb v. Hewitt, (b) Payne v. Rogers, Doug., 407. Hickey v. Bart, 7 Taunt., 49. Jones v. Herbert, 7 Taunt., 42. Legh v. Legh, 1 B. & P., 447. Innell v. Newman, 4 B. & Ald., 419. Manning v. Cox, 7 J. B., Moore, 617. Sargent v. Wedlake, 11 C. B., 372. Rawstone v. Gandell, 15 M. & W., 305. Barker v. Richardson, 1 Y. & J., 362. Ex parte Morrison, 33 L. J., Bkcy., 47. De Pothonier v. De Matias, E. B. & E., 461. (c) Y. B., 21 Edw., 4, 81, c. 33. Co. Litt., 232a. Fowell v. Forrest, 2 Wms. Saund., 48. Clayton v. Kynaston, 2 Salk., 574. Wankford v. Wankford, 1 Salk., 300. Cheetham v. Ward, 1 B. & P., 630. Evans v. Brembridge, 2 K. & J., 174. Nicholson v. Revill, 4 A. & E., 675. Price v. Barker, 4 E. & B., 760. (d) Lacy v. Kinaston, 1 Ld. Raym., 690. Fitzgerald v. Trant, 11 Mod., 254. Dean v. Newhall, 8 Tr., 168. Hutton v. Eyre, 6 Taunt., 289. Solly v. Forbes, 2 Bro. & B., 38. Thompson v. Lack, 3 C. B., 240. Price v. Barker, 4 E. & B., 760. Walmesley v. Cooper, 11 A. & E., 216. Kearsley v. Cole, 16 M. & W., 128. Henderson v. Stobart, 5 Ex., 99. Willis v. De Castro, 4 C. B., N. S., 216. Owen v. Homan, 4 H. L. Ca., 1037. Bateson v. Gosling, L. R., 7 C. P., 9. Green v. Wynn, L. R., 7 C. P., 28: aff. 4 Ch. Ap., 204. Keyes v. Elkins, 5 B. & S., 240. Andrew v. Macklin, 6 B. & S., 201. 218. 1. A covenant not to sue for a limited time is not a release and cannot be pleaded in bar (a). 2. Unless it is expressly provided in the deed that it may be pleaded in bar (b). (a) Ayliff v. Scrimsheire, 1 Show., 46. Deux v. Jefferies, Cro. Eliz., 352. Smith v. Mapleback, 1 T. R., 446. Burgh v. Preston, 8 T. R., 486. Thimbleby v. Barron, 3 M. & W., 210. (b) Walker v. Neville, 34 L. J., Ex., 73. 214. 1. A release after the bill is due discharges all the parties prior to the releasor. 2. But a release before the bill is due, though good between the parties, does not invalidate the claims of an indorsee for value without notice of the release. Dod v. Edwards, 2 C. & P., 602. |