§ 96 drawee had funds to meet the bill: Code de Com. Art. 170. Notice of Under the Act, it is only a drawer as to whom the drawee dishonour. or acceptor is under no obligation to accept or pay the bill, that must prove this: sec. 92 (c).

Mere knowledge of the dishonour of a bill is not enough to bind a drawer or indorser: Burgh v. Legge, 5 M. & W. at p. 422 (1839); Carter v. Flower, 16 M. & W. at p. 749 (1847); Count v. Thmopson, 7 C. B. 400 (1849). A notice in accordance with the rules in the three succeeding sections should be given where notice is not excused.

Before the Act, persons who became parties to bills as warrantors, have been held not entitled to the same notice as ordinary endorsers. As to their position now, see section 106, and section 131 and notes thereon.

Proviso (a) would apply where the bill bore no mark of dishonour, and the holder took it under the conditions set out in section 56. See Roscow v. Hardy, 12 East 434 (1810); Dunn v. O'Keefe, 5 M. & S. 282 (1816); Whitehead v. Walker, 9 M. &. W. 506 (1842).

ILLUSTRATIONS.

1. A bill was indorsed for the accommodation of the drawer. The drawee refused to accept, and the bill was protested for nonacceptance and non-payment. Notices of both were sent to the drawer, but of non-payment only to the indorser. Held, that the indorser was discharged, although the drawer had no effects in the hands of the drawee: Gore Bank v. Craig, 7 U. C. C. P. 344 (1857).

2. It is only the drawer or indorser who has not been notified that can claim such discharge: Grant v. Winstanley, 21 U. C. C. P. 257 (1871).

3. A bank's notary received for protest a note made and indorsed for his accommodation which the bank had discounted for him. Instead of protesting it he gave it up to the parties, saying he had paid it. Some months after this he absconded. Held, that by laches of the bank both maker and indorser were discharged: Canadian Bank of Commerce v. Green, 45 U. C. Q. B. 81 (1880).

4. The omission to give notice of non-acceptance is not cured by notice of non-acceptance given with the notice of non-payment: Jones v. Wilson, 2 Rev. de Lég. 28 (1813).

5. The indorser of a bill of exchange is in all cases entitled to notice, even when the drawee has no effects in his hands: Griffin v. Philips, 2 Rev. de Lég. 30 (1821).

6. An accommodation indorser is entitled to notice of dishonor, and is discharged by the absence of it: Merchants' Bank v. Cunningham, Q. R. 1 Q. B. 33 (1892).

7. A person who is interested in the bill to the knowledge of the holder, but whose name is not on it, is not entitled to notice of dishonor: Anderson v. Archibald, 9 N. S. (3 G. & O.) 88 (1872); Swinyard v. Bowles, 5 M. & S. 62 (1816); Hitchcock v. Humfrey, 5 M. & Gr. 559 (1843); Walton v. Mascall, 13 M. & W. 72 (1844); Carter v. White, 25 Ch. D. 666 (1883).

8. This section applies to a demand note as well as to one payable at a fixed time: Royal Bank v. Kirk, 13 B. C. R. 4; 5 W. L. R. 432 (1907).

9. A bill is dishonored and the holder gives notice to the indorser but not to the drawer. If the indorser in turn sends a notice to the drawer, the holder can sue both indorser and drawer. If such latter notice be not given the holder can sue the indorser, but neither of them can sue the drawer: Rickford v. Ridge, 2 Camp. 537 (1810); Miers v. Brown, 11 M. & W. 372 (1843); Berridge v. Fitzgerald, L. R. 4 Q. B. at p. 642 (1869).

10. Where the drawer or an indorser of a bill is discharged for want of notice of dishonor, he is also discharged from any liability on the consideration for the bill: Bridges v. Berry, 3 Taunt. 130 (1810); Peacock v. Pursell, 14 C. B. N. S. 728 (1863); Hart v. McDougall, 25 N. S. 38 (1892). So also is any person who is a warrantor or surety for him: Anderton v. Beck, 16 East 248 (1812); Hopkins v. Ware, L. R. 4 Ex. 268 (1869).

11. Where the same person was secretary of two companies that were parties to a bill dishonored by non-payment, his knowledge as secretary of one company that the bill was dishonored is not notice to the other, unless it was his duty as secretary of the former, to communicate the fact to the other company: In re Fenwick Stobart & Co., Deep Sea Fishery Co.'s Claim, [1902] 1 Ch. 507.

12. Failure to notify an indorser of an instalment note of the non-payment of previous instalments does not affect his liability for later instalments of the non-payment of which he has been duly notified: Hopkins v. Merrill, 79 Conn. 626 (1907).

§ 96

Notice of dishonour.

acceptor.

2. In order to render the acceptor of a bill Notice to liable it is not necessary that notice of dishonour should be given to him. 53 V., c. 33, 52 (3). Imp. Act, ibid.

The acceptor is liable without notice of dishonour because he is the person primarily liable on the bill, and it is dishonoured through his default: Treacher v. Hinton, 4 B. & Ald. 413 (1821); Smith v. Thatcher, ibid. 200 (1821). If the bill be a foreign one, he is liable even if it be not protested.

$ 96

Notice.

Time for.

The maker of a note is in the same position as the acceptor of a bill: sec. 186.

97. Notice of dishonour in order to be valid and effectual must be given,—

(a) not later than the juridical or business day next following the dishonour of the bill; 53 V., c. 33, s. 49 (1 k.) Imp. Act, s. 49 (12).

Notice of The rules in this and the following sections as to notice dishonour. of dishonour apply only to bills payable in Canada; those payable abroad are governed by the law of the locality. They are taken from section 49 of the Imperial Act, with the exception of that in section 103, which declares a notice of protest or dishonour to be sufficient if posted on the day after the protest and dishonour, addressed to the party at his usual address or residence or at the place where the bill is dated, unless he has given some other address on the bill. This latter provision obviates many of the difficulties that arise, which have been urged as reasons for delay in giving notice or for excusing notice altogether, in England and the United States, where they have no law making the place where the bill is dated a sufficient address. See the notes and illustrations under section 103.

Sub-section 10 of the Imperial Act allowing notice to be given to the trustee of a bankrupt was omitted as being inapplicable to Canada, there being no bankrupt law here, and the Act not recognizing or taking notice of the provincial Acts relating to assignments for the benefit of creditors, or the appointment of trustees or curators to the estates of those unable to pay their debts.

An indorser who has made an abandonment or assignment under the Quebec Code is not liable without notice of dishonour, and his curator cannot bind him by waiver of protest: Denenberg v. Mendelsshon, Q. R. 23 S. C. 128 (1903); Molsons Bank v. Steel, ibid. 316 (1903).

(a) The Imperial Act provides that notice must be given "within a reasonable time" after dishonour. If the parties live in the same place it should be sent so as to arrive the day after dishonour, if in different places, so as to go off by

next day's post if there is one. A notice by telegram on the § 97 second day after dishonour has been held sufficient: Fielding v. Corry, [1898] 1 Q. B. 268. The Canadian Act has adopted the old rule in force in Ontario: R. S. C. (1886) c. 123, s. 23. In Quebec the holder had three days after protest to give notice: C. C. Art. 2330.

A juridical or business day is any except Sunday or one of the holidays mentioned in section 43.

For questions as to time of giving notice under the old law, see Nassau v. O'Reilly, Rob. & Jos. Dig. 498 (1839); Bank of B. N. A. v. Ross, 1 U. C. Q. B. 199 (1843); Chapman v. Bishop, 1 U. C. C. P. 432 (1852); Brent v. Lees, 2 Rev. de Lég. 335 (1820)

See also illustrations under sec. 103, post.

or en

(b) by or on behalf of the holder, or by or on be- By holder half of an endorser, who at the time of giving it, dorser. is himself liable on the bill; 53 V., c. 33, s. 49 (a). Imp. Act, s. 49 (1).

The holder or such endorser, or the person acting on behalf of either of them, may give notice to all the antecedent parties entitled to notice, or only to such of them as he may desire to hold liable on the bill. In the latter case, an endorser receiving notice may thereupon give notice to any additional parties entitled to notice, whom he desires to hold liable: secs. 100 and 101. The usual practice in Canada is for the holder or his agent to give notice to all prior parties who have not waived notice on the bill.

ILLUSTRATIONS.

1. When a note payable at a bank is sent there for collection, the protest may properly be made and notice given by the bank although it has no interest in the note: Wilson v. Pringle, 14 U. C. Q. B. 230 (1856); Girvan v. Price, 8 N. B. (3 Allen) 409 (1857); Howard v. Godard, 9 N. B. (4 Allen) 452 (1860). Also by any person authorized to receive payment: Rowe v. Tipper, 13 C. B. 249 (1853).

2. An indorser is notified of dishonor by a person who formerly held the bill, but had not at the time of dishonor any such relation as above indicated. He is released: Stewart v. Kennett, 2 Camp. 177 (1809); Chanoine v. Fowler, 3 Wend. 173 (1829).

§ 97

3. The drawee may act as agent for a party entitled to give notice: Rosher v. Kieran, 4 Camp. 87 (1814), as modified by Harri

W o may son v. Ruscoe, 15 M. & W. at p. 235 (1846). If, however, the give drawee be not properly authorized the notice is bad: Stanton v. Blossom, 14 Mass. 116 (1817).

no ce.

represent

ative.

4. An indorser who is discharged by notice coming one day late gives notice in time to the drawer. The latter is not liable: Turner v. Leech, 4 B. & Ald. 451 (1821).

5. A notice by an attorney is sufficient, although he does not say for whom he is acting, if in fact he was authorized: Woodthorpe v. Lawes, 2 M. & W. 109 (1836).

6. An indorser who holds a bill as agent for the indorsee may give notice in his own name: Lysaght v. Bryant, 9 C. B. 46 (1850).

7. Notice by a party liable is good, although he is not at the time certain of the dishonor or of his own liability: Jennings v. Roberts, 4 E. & B. 615 (1855).

8. If the holder be dead, notice should be given by his personal representative: White v. Stoddard, 11 Gray, 258 (1858).

Personal (c) in the case of the death, if known to the party giving notice, of the drawer or endorser, to a personal representative, if such there is and with the exercise of reasonable diligence he can be found; 53 V.. c. 33, s. 46 (i). Imp. Act, s: 49 (9).

Section 103 provides that a notice posted shall not be invalid by reason that the party to whom it is addressed is dead. As the present clause is imperative where the death is known and a representative can be found, that sub-section will be limited to the cases where the party giving notice does not know of the death or cannot find such representative. Chalmers, p. 163, says there was no English decision on the point. If there be no personal representative appointed, notice should be sent to the last residence or last place of business of the deceased.

ILLUSTRATIONS.

See also illustrations under section 103, post.

1. A notice of non-payment, merely "To the executrix or executor of the late Mr. Jones, Toronto," is bad: Bank of B. N. A. v. Jones, 8 U. C. Q. B. 86 (1850).

2. Where an indorser died intestate and no administrator had been appointed when the note matured, a notice addressed to him