Judge, 2 H. Bl. 509; and Scott v. Lifford, 9 East, 347, it was held that it is not necessary that the notice should be shewn to have come to the defendant's hands, nor is it any answer that it has not. It is enough that the plaintiff has duly posted it; see also Castrique v. Bernabo, 14 L. J. Q. B. 3; again in Woodcock v. Houldsworth, 16 M. & W. 124, it was held that if a notice of dishonour be posted in due time, the holder is not prejudiced, if through mistake or delay of the post-office, it is not delivered in due time. It has been held that a letter directed "Mr. Haynes, Bristol," containing notice of the dishonour of a bili is too general a direction to raise a presumption that the letter reached the particular individual intended, Walter v. Haynes, R. & M. 149; but the fact that the holder had previously sent a letter to the drawer, addressed as he had dated the bill, is evidence on which a jury is warranted in finding that due diligence has been used to give notice of dishonour, though no inquiry had been made of the acceptor who knew the drawer's address, Burmester v. Barron, 17 Q. B. 828; following Mann v. Moore, R. & M. 249; Clarke v. Sharpe, 3 M. & W. 166. But where notice of dishonour reaches the drawer too late, having first by mistake been sent to a wrong person, and such mistake arose from the indistinctness of the drawer's writing on the bill, he is not discharged, Hewitt v. Thompson, 1 Moo. & Rob. 543. SS. 49, 50. Rules as to notice of dishonour. delay. 50.-(1.) Delay in giving notice of dishonour is ex- Excuses for cused where the delay is caused by circumstances beyond non-notice and the control of the party giving notice, and not imputable to his default, misconduct, or negligence (z). When the cause of delay ceases to operate, the notice must be given with reasonable diligence (y). (2.) Notice of dishonour is dispensed with— Ind. Act, s. 98, sub-s. (a). sub-s. (d). Ind. Act, s. 98, Ind. Act, s. 98, sub-s. (a). (b) By waiver express or implied. Notice of dishonour may be waived before the time of giving notice has arrived, or after the omission to give due notice (w): (c) As regards the drawer in the following cases, namely, Ind. Act, s. 98, (1) where drawer and drawee are the same person (v); (2) where the drawee is a fictitious person or a person not having capacity to contract (t); (3) sub-s. (e). S. 50. Excuses for non-notice and delay. Ind. Act, s. 98, sub-s. (b). where the drawer is the person to whom the bill is presented for payment (s); (4) where the drawee or acceptor is as between himself and the drawer under no obligation to accept or pay the bill (r); (5) where the drawer has countermanded payment (q): (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 (p); (2) where the indorser is the person to whom the bill is presented for payment (o); (3) where the bill was accepted or made for his accommodation (n). (2) It has been held that where the holder does not know the indorser's address he is excused for not giving regular notice of dishonour if he use reasonable diligence to discover where the indorser may be found, Bateman v. Joseph, 2 Camp. 461; see also Baldwin v. Richardson, 1 B. & C. 245; and Gladwell v. Turner, L. R. 5 Ex. 59. As to the delay in giving the notice of dishonour being caused by circumstances beyond one's control, see Berridge v. Fitzgerald, L. R. 4 Q. B. 639. But it is not enough to make such inquiries at the place where the bill is payable, Beveridge v. Burgis, 3 Camp. 262. Again the delay is excused if the notice of dishonour is sent by mistake to a wrong person, through the indistinctness of the drawer's writing on the bill, Hewitt v. Thompson, 1 Moo. & Rob. 543. (y) See Dixon v. Johnson, 1 Jur. N. S. 70, where the holder on the maturity of the bill not knowing the defendant's address, wrote for it to another indorsee, and on the day he received an answer sent notice of dishonour to the defendant, and it was held sufficient. (a) As to reasonable diligence see section 36, sub-s. (3), and note (v) thereto; section 39, sub-sec. (4), and note (e) thereto. (w) There can be no difficulty as to an express waiver. But as to the circumstances from which a waiver will be implied, see Brett v. Levett, 13 East, 214; Bishop v. Rowe, 3 M. & S. 362; Campbell v. Webster, 15 L. J. C. P. 4; Mills v. Gibson, 16 L. J. C. P. 249; Jackson v. Collins, 17 L. J. Q. B. 142; Brownell v. Bonney, 1 Q. B. 39; Raybey v. Gilbert, 30 L. J. Ex. 170; Woods v. Dean, 3 B. & S. 101; 32 L. J. Q. B. 1; North Stafford Company v. Wythies, 2 F. & F. 563. From these cases it would seem that if, on the maturity of a bill, the party entitled to notice of dishonour, acknowledges the debt, or promises to pay it, or asks for time, that is a waiver of the want S. 50. Excuses for of notice of dishonour: although mere acknowledgment without a (v) Because the instrument is then a promissory note, the drawer being the maker, and so not entitled to notice of dishonour; see sect. 5 (2) and the notes thereto. (t) So held in Smith v. Bellamy, 2 Stark. 223. (s) "If, for example, A. draws on himself, payable to himself, and then accepts, and then indorses, a holder need not first demand of him as drawee, and then notify him of non-payment as drawer, and then notify him again as indorser,” 1 Parsons on Bills, 521. See Caunt v. Thompson, 7 C. B. 400; 18 L. J. C. P. 125. (r) This is the case of an acceptor who has accepted for the accommodation of the drawer whom the drawer has not put in funds for the purpose of meeting the bill, see Bickerdike v. Bollman, 2 Sm. L. C. (8th Edition), p. 51; 1 T. R. 405; and Goodall v. Dolley, 1 T. R. 712; Rogers v. Stephens, 2 T. R. 713; Legge v. Thorpe, 12 East, 171; Claridge v. Dalton, 2 M. & S. 226; Carter v. Flower, 16 M. & W. 743; Everard v. Watson, 1 E. & B. 804, and the other cases discussed in the notes to the same. But it has been held that the drawer is entitled to notice if he had reasonable ground to expect that the bill would be honoured on the strength of the consignment, Rucker v. Hiller, 3 Camp. 217. And that, too, although the funds may not have actually arrived, Robins v. Gibson, 3 Camp. 334. But the drawer is not entitled to notice if the funds either in the hands of or on their way to the acceptor are not sufficient for meeting the bill, Carew v. Duckworth, L. R. 4 Ex. 317. But it is submitted that the drawee or acceptor is, to use the words of this sub-section, under no obligation to pay unless he is actually put in funds for that purpose by the drawer at or before the maturity of the bill, and that therefore, unless such is the case, the drawer is not entitled to notice of dishonour. Knowledge that the bill will probably be dishonoured does not operate as a notice of dishonour, Caunt v. Thompson, 7 C. B. 400. (9) It was so held in Hill v. Heap, D. & R. N. P. C. 57. See 1 Parsons on Bills, 584. (p) In Leach v. Hewitt, 4 Taunt. 731, it was held that one who, without consideration but without fraud, indorses a bill in which both the holder and acceptor are fictitious persons, is entitled to notice of the dishonour of the bill. (0) See Caunt v. Thompson, 7 C. B. 400; 18 L. J. C. P. 125, where the bill was taken to the defendant when it became due, and he said that the acceptor was dead, and that he was his executor; at the same time he asked for time saying that he would see the bill paid. See note (s) above. non-notice and SS. 50, 51. Excuses for non-notice and delay. Noting or protest of bill. Ind. Act, s. 99. Ind. Act, ss. 100 & 104. Ind. Act, s. 99. Ind. Act, s. 100. Ind. Act,s. 100. Ind. Act, s. 103. (n) Because he would have no remedy over against any other party to the bill, per Brett, L.J., in Turner v. Samson, 2 Q. B. D. 23, where the authorities are reviewed. 51.-(1.) Where an inland bill has been dishonoured, it may, if the holder think fit, be noted (z) for non-acceptance or non-payment as the case may be; but it shall not be necessary to note or protest any such bill in order to preserve the recourse against the drawer or indorser. (2.) Where a foreign bill, appearing on the face of it to be such, has been dishonoured by non-acceptance, it must be duly protested for non-acceptance, and where such a bill, which has not been previously dishonoured by non-acceptance, is dishonoured by non-payment, it must be duly protested (y) for nonpayment. If it be not so protested the drawer and indorsers are discharged (a). Where a bill does not appear on the face of it to be a foreign bill, protest thereof in case of dishonour is unnecessary (w). (3.) A bill which has been protested for non-acceptance may be subsequently protested for non-payment (v). (4.) Subject to the provisions of this Act, when a bill is noted or protested, it must be noted on the day of its dishonour (t). When a bill has been duly noted the protest may be subsequently extended as of the date of the noting (s). (5.) Where the acceptor of a bill becomes bankrupt or (a) When a bill is presented through the post-office, or residence of some person other than the drawee, S. 51. presentment for payment to, or demand on, the drawee is necessary. (7.) A protest must contain a copy of the bill, and must Ind. Act, s. 101, be signed by the notary making it, and must sub-s.(a) & (e). specify (n): (a) The person at whose request the bill is pro- Ind. Act, s. 101, sub-s. (b). tested (m): (b) The place and date of protest, the cause or reason for protesting the bill, the demand made, and the answer given, if any, or the fact that the drawee or acceptor could not be found (7). (8.) Where a bill is lost or destroyed, or is wrongly detained from the person entitled to hold it, protest may be made on a copy or written particulars thereof (k). (9.) Protest is dispensed with by any circumstance which would dispense with notice of dishonour (1). Delay in noting or protesting is excused when the delay is caused by circumstances beyond the control of the holder (h), and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate, the bill must be noted or protested with reasonable diligence (g). (2) "Noting is a minute made on the bill by the officer at the time of refusal of acceptance or payment. It consists of his initials, the month, the day, the year, and his charges for minuting; and is considered as the preparatory step to protest." Byles on Bills (13th Edition), pp. 263; see also Brookes' Notary, 3rd Edit., p. 73. As to the expense of noting, see sub-division (c) of sub-sect. (1) of sect. 57 of this Act, and note (q) thereto. Ind. Act, s. 101, sub-s. (c) & (d). (y) “When a foreign bill is refused acceptance or payment, it was Ind. Act, and still is necessary, by the custom of merchants, in order to charge ss. 100, & 101. the drawer, that the dishonour should be attested by a protest. For, by the law of most foreign nations, a protest is or was essential in case of dishonour of any bill; and, though by the law of England it is unnecessary in case of an inland bill, yet, for the sake of uniformity, in |
