never delivered, was held to complete the contract of a share-
holder with the company, all the cases, English and Scotch,
were reviewed, and the principle was given effect to, that in
all cases where the post-office is a proper medium of communi-
cation, the sender is not responsible for accidents occurring
in the post-office, whether these merely cause delay or entirely
prevent delivery of the communication. But the post-office
is not a proper medium for presenting a bill for payment
where there is no agreement or usage to that effect. So soon,
however, as the holder learns, or perhaps ought to have learned,
that the presentment has not in point of fact been made, he
must use reasonable diligence to present the bill, vide
§ 46 (1), and note (h) on § 49 (15).

§ 45.

delay or non

for payment.

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

(2.) Presentment for payment is dispensed with,-
(a.) Where, after the exercise of reasonable dili-
gence (b) presentment, as required by this Act,
cannot be effected.

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

(b.) Where the drawee is a fictitious person (d).
(c.) 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 (e).

§ 46.

(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.

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

(a.) E.g., The sudden illness or death of the holder, or of the agent employed by him to present, or distance from a postoffice, or unavoidable business, Darbishire v. Parkes, 6 East. 3.

(b.) See note (e) on § 39.

(c.) The rule that presentment must be made, although the drawee be bankrupt, or insolvent, or has stopped payment, in re Agra Bank ex parte Tondeur, L. R. 5, Eq. 160, Smith's Mercantile Law, 236, is not altered.

(d.) The holder may treat the bill in this case as a promissory note, vide § 5 (2), and the drawer will then be held to be the maker, and liable in the same way as the acceptor.

(e.) E.g., Where the acceptor is an accommodation party, and the drawer is bound to put him in funds to meet the bill at maturity; also where a cheque is drawn upon a banker, who has declined to honour the cheques of the drawer.

(f.) In Cairns' Trustees v. Brown, 26th June, 1836, 14 Sh. 999, a drawer who induced the holder to delay presentment, and thereafter, at his own request, had the bill sent to him to receive payment, and then protested it for non-payment. It was held that he had waived his right to due negotiation. In Allhusen & Sons v. Mitchell & Company, 23rd Feb. 1870, 8 M. 600, the acceptor of a bill became bankrupt before its maturity, and the holders did not present for payment. After an interval of two years the holders sued the drawers for payment, and were met by the defence that the bill had not been presented. It was held that the drawers had waived their right to state this plea, by writing letters subsequent to the date, when the bill became overdue, in which they asked indulgence for two or three weeks,

and by implication acknowledged liability for the amount. The following cases may also be referred to in illustration of what amounts to waiver, Rogers v. Stephens, 2 Durnford and East. T. R. 7, 13; Kilby v. Rochussen, 18 Scott, C. B. Reports, N. S. 357; Taylor v. Jones, 2 Campbell, 105; Lundie v. Robertson, 7 East. 231; Hodge v. Fillis, 3 Campbell, 462.

§ 46.

non-payment.

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

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

(a.) Vide, § 45.

(b.) Vide, § 46.

(c.) Vide, 14 and 45.

(d.) A holder has no recourse against the drawer and prior indorsers when he has failed to present a bill payable after sight for acceptance or to negotiate it within a reasonable time, or in the case of a bill, which has been materially altered, vide § 64, or where their signatures have been cancelled, vide § 63 (2). Where the holder of a bill refuses to receive payment, supra protest, he has no recourse against any person who would have been discharged by such payment, vide 68 (7). There is no recourse on the bill against a person not having capacity to contract, vide § 22, nor against a drawer and indorser without recourse, vide § 16. Where the bill has been accepted for honour it must be presented to the acceptor for honour, and protested, if dishonoured by him, before recourse is taken against the drawer, vide § 67

$47.

Notice of dishonour and effect of non

notice.

(2, 4). To preserve the right of recourse, the holder must take the steps prescribed in §§ 48, 49, 50, and 51.

(e.) Vide § 2.

48. Subject to the provisions of this Act (a), when a bill has been dishonoured by non-acceptance or by nonpayment (b), notice of dishonour must be given to the drawer and each indorser, and any drawer or indorser to whom such notice is not given is discharged (c): 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 (d) subsequent to the omission, shall not be prejudiced by the omission.

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 (e).

(a.) The omission to give notice of dishonour does not discharge the drawer and indorsers in the cases mentioned in § 50, and, in the case of a bill payable on demand being dishonoured by non-payment, only discharges them in a question with the then holder. If such a bill subsequently comes into the hands of a holder in due course, vide § 29, and is presented by him for payment before it is overdue-i.e., before it appears on the face of it to have been in circulation for an unreasonable length of time, vide § 36 (3), he has recourse against the drawer and indorsers, notwithstanding the provisions of this section, vide § 38 (2). It is no excuse for the omission to give notice that the drawer or indorser has not in point of fact suffered loss thereby.

(b.) Vide $$ 43 and 47.

(c.) The holder can avail himself of a notice given by an

indorser who is liable on the bill, and who is subsequent to
the party to whom notice is given, vide § 49 (5).

(d.) Vide § 29.

(e.) Vide § 18 (3).

$ 48.

notice of dis

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

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

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

(3.) Where the notice is given by or on behalf of the holder, it enures for the benefit of all subsequent holders and all prior indorsers who have a right of recourse against the party to whom it is given.

(4.) Where notice is given by or on behalf of an

indorser entitled to give notice as herein-before
provided, it enures for the benefit of the holder
and all indorsers subsequent to the party to whom
notice is given.

(5.) The notice may be given in writing or by per-
sonal communication, and may be given in any
terms which sufficiently identify the bill, and
intimate that the bill has been dishonoured by
non-acceptance or non-payment (b).