Wiffen v. Roberts, 1 Esp. 261. The holder of a bill is entitled to know, on the day when it becomes due, whether it is honoured or dishonoured, Cocks v. Masterman, 9 M. & W. 902. In the time for the presentment of a bill, the day of presentment is excluded, Lester v. Garland, 15 Ves. 255.

(x) See Byles on Bills (13th Edition) 211; Chalmers' Digest of the Law of Bills of Exchange (2nd Edition) 140; Story on Bills, s. 325. (w) This is the same, in language, as sub-sect. (3) of sect. 40 of this Act, which see, and also notes (d) (e) (ƒ) and (g) thereto.

(u) See note (w) to section 41. (v) See note (v) to section 41. As we have seen already if a bill is payable at a banker's it must be presented during banking hours, Parker v. Gordon, 7 East, 385; but it has been held that if a bill is presented at a bank or other place of business at other than the usual banking or business hours, and no objection is made thereto, it is a good presentment, Garnett v. Woodcock, 6 M. & S. 44. It has been held that if a bill is payable at a banker's, and it is before its maturity indorsed to him, presentment is not necessary, Bailey v. Porter, 14 M. & W. 44.

(t) As to the definition of a proper place, see sub-section 4 and the notes thereto.

(s) As to who is such an agent of the payer as is contemplated by this sub-section, see Cromwell v. Hynson, 2 Esp. 211; Reynolds v. Chettle, 2 Camp. 596; Robson v. Bennett, 2 Taunt. 388; Philips v. Astling, 2 Taunt. 206.

(r) It was formerly held that an acceptance payable at a particular place was a qualified acceptance, and that presentment at such place was absolutely necessary, Rowe v. Young, 2 B. & B. 165; 2 Bligh, H. L. 468. In consequence of this the statute 1 & 2 Geo. 4, c. 78, was passed, which provided that an acceptance payable at a particular place is a general acceptance unless it was stated to be payable there only and not elsewhere. Since this statute there have been decisions to the same effect, see Turner v. Hayden, 4 B. & C. 1; Selby v. Eden, 3 Bing. 611; 11 Moo. 511; Fayle v. Bird, 6 B. & C. 531; 2 C. & P. 303. Where a bill was made payable in a particular town it was held that a presentment at the two banking-houses at that place was sufficient, Hardy v. Woodroofe, 2 Stark. 319; and where a bill was made payable at one of two towns a presentment at either was sufficient, Beeching v. Gower, Holt. N. P. C. 313. The present subdivision (a) of sub-sect. (4) of this section does not seem to have made any alteration in the law on this point.

(2) Before this Act it was held that if the place of payment was mentioned in a memorandum in the margin, and not in the body of the bill or note, presentment at that place was not necessary, as such memorandum was only a direction, Price v. Mitchell, 4 Camp. 200; Williams v. Waring, 10 B. & C. 2; 5 M. & R. 9. And it was in

S. 45.

Rules as to

presentment for payment.

SS. 45, 46.

Rules as to presentment for payment.

Excuses for delay or nonpresentment

for payment.

Ind. Act, s. 76, sub-s. (a).

another case held that a memorandum is no part of the bill, Masters v. Baretto, 19 L. J. C. P. 50. But see Trecothick v. Edwin, 1 Stark. 468, where the contrary was held. The latter case, however, proceeded on the ground of the body of the note and the place of payment being printed. See further sect. 87 and the notes thereto.

(p) And this, even though the acceptor has removed, provided the new address be not known to the holder, vide Buxton v. Jones, 1 M. & G. 86; Brown v. M'Dermot, 5 Esp. 265.

(0) Where a bill was made payable at a particular house, it was held that presentment at the door was sufficient if the house was shut up, Hine v. Allely, 4 B. & Ad. 624; 1 N. & M. 433. And where the house was not shut up, presentment to any inmate was considered sufficient, Cromwell v. Hynson, 2 Esp. 211; Buxton v. Jones, 1 M. & G. 83.

(n) Vide note (o) hereof.

(m) As to presentment to a personal representative, see Caunt v. Thompson, 7 C. B. 400.

(1) As to presentment through the post see note (r) to section 41.

46.-(1.) Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct, or negligence (z); when the cause of delay ceases to operate presentment must be made with reasonable diligence.

(2.) Presentment for payment is dispensed with—

(a) Where, after the exercise of reasonable diligence, presentment as required by this Act cannot be effected (y).

The fact that the holder has reason to believe that the bill will, on presentment, be dishonoured, does not dispense with the necessity for presentment (w).

(b) Where the drawee is a fictitious person (v).

As regards the drawer, where the drawee or acceptor is not bound, as between himself and the drawer, to accept or pay the bill, and the drawer has no reason to believe that the bill would be paid if presented (†). (d) As regards an indorser, where the bill was accepted or made for the accommodation of that indorser, and he has no reason to expect that the bill would be paid if presented (s).

(e) By waiver of presentment, express or implied (r).

(2) This is the same as a part of Lord Denman's judgment in Rothschild v. Currie, 1 Q. B. 47, which is as follows: "It appears to us that the delay was attributable to circumstances over which the notary had no control, and therefore was satisfactorily accounted for." "If by an alteration of the local law pending the currency of the bill, the obligations of the acceptor are rendered more onerous, those of the indorser becomes so likewise. On the other hand, if the time of payment were postponed by a period of grace being allowed, or by an enactment that a bill falling due on a day appointed to be kept as a holiday, should be payable a day after, the period at which the liability of the indorser on nonpayment by the acceptor would arise, would be pro tanto delayed. If the right of the holder as against the acceptor and the antecedent parties can be thus modified in respect of the time of payment, there can be no injustice or hardship towards them in holding him exempted from the obligations of presenting the bill earlier than his right of payment accrues, or of giving notice of dishonour in order to preserve his right of recourse to them”; per Cockburn, L.C.J., in Rouquette v. Overmann, L. R. 10 Q. B. 525. In this case the bill was accepted by French subjects at Paris, and was payable on the 5th October, 1870. In consequence of the Franco-German war the time for presenting and protesting current bills was from time to time enlarged till the 5th Sept. 1871. On that day the bill was presented to the acceptors and payment refused; thereupon it was duly protested and notice of dishonour given; it was held that the defendants (drawers) were liable. See also Byles on Bills (13th Edition), p. 219.

(y) An averment that the bill when due was presented and shewn to the acceptor for payment is supported by proof that the holder went to the acceptor's place of business to present it, but found the house shut up and no one there, Hine v. Allely, 4 B. & Ad. 624; 1 N. & M. 433. But an allegation that the plaintiffs were ready to present and would have presented, but that the defendant was not to be found, will not do, Eands v. Clarke, 19 L. J. C. P. 84; 8 C. B. 751. If a bill is payable at a banker's and the defendant is not to be found, presentment at the banker's is sufficient, Hardy v. Woodroofe, 2 Stark, 319.

(w) See Bowes v. Howe, 5 Taunt. 30; Ex parte Bignold, 1 Deac. 712; 2 Mont. & Ayr. 633. Nor will the bankruptcy of the drawer or acceptor dispense with presentment or notice of dishonour, see Esdaile v. Sowerby, 11 East, 117; Bowes v. Howe, 5 Taunt. 30; Ex parte Johnston, 1 Mont. & Ayr. 622; 3 Deac. & Chitty, 443; Story on Bills, sect. 326. See also Quinn v. Fitzgerald, 1 Ir. C. L. R. 552. As to cheques, see sect. 74 of this Act, note (a) thereto.

(v) So laid down by Lord Ellenborough in Smith v. Bellamy, 2 Stark. 223.

(t) For example, absence of effects of the drawer in the drawee's

S. 46.

Excuses for delay or nonpresentment for payment.

SS. 46, 47, 48.
Excuses for

delay or non-
presentment
for payment.

Dishonour by non-payment. Ind. Act, s. 92.

Ind. Act, s. 92.

Notice of

dishonour and effect of nonnotice.

hands at the time of drawing the bill and of its maturity, Dennis v. Morrice, 3 Esp. 158; Terry v. Parker, 6 A. & E. 502. As to cheques see the cases cited under sect. 74, note (a).

(s) In Turner v. Samson, 2 Q. B. D. 23, it was held that if the intention of all parties to an accommodation bill is that it should be met by the last indorser, he need not have notice of dishonour.

(r) As where the indorser had paid part of the note; Vaughan v. Fuller, 2 Stra. 1246; or an application for further time to pay, with knowledge of the want of due presentation; Hopely v. Dufresne, 15 East, 275; Lundie v. Robertson, 7 East, 231; or if there be an agreement on the part of the bankrupt that the bill should not be presented, per Erskine, C.J., in Ex parte Bignold, 1 Deac. 737; Gunson v. Metz, 1 B. & C. 193; Story on Bills, sect. 373.

47.—(1.) A bill is dishonoured by non-payment (a) when it is duly presented for payment (z) and payment is refused or cannot be obtained, or (b) when presentment is excused (y) and the bill is overdue and unpaid.

(2.) Subject to the provisions of this Act, when a bill is dishonoured by non-payment, an immediate right of recourse against the drawer and indorsers accrues to the holder (x).

(z) As to when a bill is duly presented for payment, see sub-sects. (1) (2) (3) (4) (5) (6) (7) and (8) of sect. 45 of this Act, and the notes thereto.

(y) As to when presentment is excused, see sub-sects. (1) and (2) of sect. 46 and the notes to the same.

(x) It was so laid down by Lord Lyndhurst in Siggers v. Lewis, 1 C. M. & R. 370, overruling Walker v. Barnes, 5 Taunt. 240, where it was held that a tender within a reasonable time after notice of dishonour prevented the plaintiff from recovering damages for the time between the notice of dishonour and the tender.

48.-Subject to the provisions of this Act, when a bill has been dishonoured by non-acceptance (a) or by nonpayment (b), notice of dishonour (c) must be given to the Ind. Act, s. 93. drawer and each indorser (d), and any drawer or indorser to whom such notice is not given is discharged (e). Provided that—

(1) Where a bill is dishonoured by non-acceptance and notice of dishonour is not given, the rights of a holder in due course subsequent to the omission shall not be prejudiced by the omission (ƒ).

(2.) Where a bill is dishonoured by non-acceptance, and due notice of dishonour is given, it shall not be necessary to give notice of a subsequent dishonour by non-payment unless the bill shall in the meantime have been accepted (g).

(a) As to dishonour by non-acceptance, see sub-sect. (1) of sect. 43 of this Act and the notes thereto.

(b) As to dishonour by non-payment, see sub-sect. (1) of sect. 47 of this Act and the notes thereto.

(c) Unless the want of such notice is excused by sect. 50 of this Act. It has been held before this Act that a creditor who holds a bill as collateral security must give notice of dishonour, Peacock v. Purssell, 14 C. B. N. S. 728; 32 L. J. C. P. 266.

(d) The drawer and every indorser of a bill of exchange has always been entitled to notice of dishonour, see Bridges v. Berry, 3 Taunt. 130; unless there are any circumstances to excuse it, per Blackburn, J., in Berridge v. Fitzgerald, L. R. 4 Q. B. 642. But the acceptor of a bill or the maker of a note is not entitled to notice of dishonour, Treacher v. Hinton, 4 B. & Ald. 413; the rule is that the party, other than the acceptor, is entitled to notice of dishonour within a reasonable time, per Jervis, C.J., in Rowe v. Tipper, 22 L. J. C. P. 137; nor is the maker of a note entitled to dishonour, Pearse v. Pemberthy, 3 Camp. 261.

(e) See notes (c) and (d) hereto.

(ƒ) It was laid down in Dunn v. O'Keefe, 5 M. & S. 282. But such drawer or indorser is discharged as regards the holder at the time of dishonour and all subsequent holders with notice thereof, Roscoe v. Hardy, 12 East, 434.

(g) It was so held in Whitehead v. Walker, 9 M. & W. 506; see also Hickling v. Hurdey, 7 Taunt. 312.

SS. 48, 49.

Notice of dishonour and notice.

effect of non

49.-Notice of dishonour in order to be valid and Rules as to effectual must be given in accordance with the following notice of rules:

dishonour.

(1.) The notice must be given by or on behalf of the Ind. Act, s. 93. holder (z), or by or on behalf of an indorser, who at the time of giving it is himself liable on the bill (y).

(2.) Notice of dishonour may be given by an agent either in his own name (a), or in the name of any party entitled to give notice whether that party be his principal or not (w).

(3.) Where the notice is given by or on behalf of the