§ 67. reference in case of need (b), it must be protested for non-payment (c) before it is presented for payment to the acceptor for honour, or referee in case of need. (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 nonpayment, the bill must be forwarded not later than the day following its maturity for presentment to him (d). (3.) Delay in presentment or non-presentment is excused by any circumstance which would excuse delay in presentment for payment or non-presentment for payment (e). (4.) When a bill of exchange is dishonoured by the acceptor for honour it must be protested for non-payment by him (f). (a.) Vide § 65. (b.) Vide § 15. It is in the option of the holder to resort to the referee in case of need or not, as he may think fit. (c.) Vide 51 (4, 6, 7, 8, 9). (d.) The provisions as to the time of presentment are regulated by this subsection. For the other conditions of due presentment, vide § 45. Non-business days are excluded in fixing the day for presentment, vide § 92. (e.) Vide § 46. (f) This provision applies to an inland bill which is dishonoured by non-payment, notwithstanding § 51 (2). $ 68. honour supra 68. (1.) Where a bill has been protested for nonpayment (a), any person (b) may intervene and pay it Payment for supra protest (c) for the honour of any party liable Protest. thereon (d), or for the honour of the person for whose account the bill is drawn (e). 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 (ƒ). (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 (g). (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 (h). (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 pays, and all parties liable to that party (i). he (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 (j). $68. 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 (k). (a.) Vide § 51. (b.) Vide § 2. The consent of the holder is not required as in the case of acceptances for honour. The drawee, if he have not accepted, and an acceptor if he have accepted conditionally with the assent of the drawer and indorsers, vide § 44, and the condition has not been fulfilled, may pay for the honour of any party liable on the bill. (c.) Protest for non-payment must be made on the day of dishonour by non-payment, and at the place, and in the manner provided in this Act, vide § 51 (4, 6-9) and § 94. (d.) No one is entitled to pay for the honour of a party to a bill who is not liable thereon. Accordingly, such payment cannot be made for the honour of an indorser who has indorsed without recourse, vide § 16, or in a representative character, or for a principal, vide § 26. In the latter case, payment may be made for the honour of his principal, or of the trust-estate or office which he represents. Such payment also cannot be made where, before it is made, the party to the bill has ceased to be liable thereon either through failure of due presentment, vide § 45, unless dispensed with, vide § 46, or through omission to give notice of dishonour to the person for whose honour the payment is made, vide § 49, unless dispensed with, vide § 50, or through failure duly to protest a foreign bill, vide § 51, or where the obligation of such party has been waived, vide § 62, or cancelled, vide § 63. Payment may be made for the honour of the acceptor-e.g., in the case of a domiciled bill which is not paid by the banker at whose house it is made payable. (e.) Vide note (i) in § 65. (f) The holder has no option, because he has no interest in preferring one payer for honour to another. An acceptor for honour is not entitled to be preferred where payment by another person will discharge more parties. If the person (h.) The agent must be specially authorised to act for his (i.) The payer for honour may accordingly proceed to enforce the bill against the person for whose honour he has paid; but as he is not a holder, but merely an assignee of the holder, he takes the bill subject to all exceptions pleadable against the holder. On the other hand, he must discharge all the duties which were incumbent on the holder. He must give notice of dishonour by non-payment, vide § 49, to the person for whose honour he pays, and all persons liable to that party, if it has not already been done. (j.) Failure to deliver up the bill and the protest does not discharge the acceptor for honour from his obligation to pay, but the holder will be liable for any damage he may sustain through the want of them. His recourse against the person for whose honour he has paid may be injured by the delay caused through the want of these instruments; and if so, the holder will be bound to relieve him. (k.) The holder's rights of recourse are defined in §§ 55, 56, and 57. Lost Instruments. § 68. 69. Where a bill has been lost before it is over- Holder's right to duplicate due (a), the person (b) who was the holder (c) of it may of lost bill. $ 69. 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 (c). If the drawer on request as aforesaid refuses to give such duplicate bill, he may be compelled to do so (d). (a.) Vide §§ 10, 14, 45. (b.) Vide § 2. (c.) Where a bill has been lost the person who was in right of it is entitled to recover it from a finder; but if it has passed into the hands of a holder in due course, vide § 29, his right to the bill is gone. He can, however, recover from the finder whatever value he received for it. A holder even for value, if not in due course, is bound to give up the bill; and if he has obtained payment from the acceptor or drawee, he will be obliged to account for the sum so received, but not if he has merely acted as the agent of the person in possession of the bill in receiving payment, Clydesdale Bank v. Royal Bank, 11th March, 1876, 3 R., 586. The acceptor, if he has paid in due course the sum in the bill, either to the finder or to any holder to whom he has transferred the bill, will not be bound either to give up the bill or to pay the sum contained in it, vide §§ 38 and 59; but if he has paid the bill before maturity to a person whose title is defective, he will be bound to pay a second time. If the bill cannot be found, the person who was in right of it, including an acceptor who has paid the bill, but requires it as a voucher of a payment made by him for the drawer, may in Scotland bring an action of proving the tenor, before the Court of Session, in which he must prove (1) the facts relating to the loss of the instrument, and (2) its tenor. The proof of the loss of the bill must be distinctly made out, and will not be inferred from the mere fact of its not being found among the creditor's papers, Mac |