1

sent section such notice is sufficient. It is not likely that § 103 in such a case where the notice does not reach an endorser In that he will be held to have "received due notice" within Canada. the meaning of section 101, so as to make the delay run as to notice to antecedent parties; but the miscarriage being due to his own fault and neglect he might be held responsible under certain circumstances. At all events, in such a case he should lose no time in giving notice to antecedent parties, if the holder has not notified them.

England.

In England the holder must use due diligence to ascer- In tain the correct address of the drawer and indorsers. It has been laid down that while there might not be any reason for addressing a notice of dishonor to an indorser at the place where the bill was dated, yet it was proper to leave it to a jury whether a notice to the drawer might not reasonably be addressed there: Burmester v. Barron, 17 Q. B. 828 (1852); Clarke v. Sharpe, 3 M. & W. 166 (1838); Mann v. Moore, Ry. & M. 249 (1825).

States.

In the United States it has generally been held that the In United place of date of a bill is not even prima facie evidence of the address of an indorser, and if it appear that it is not the real address of the drawer the holder must show that he had made due enquiry: Barnewell v. Mitchell, 3 Conn. 101 (1819); Lowery v. Scott, 24 Wend. (N.Y.) 358 (1840); Pierce v. Struthers, 27 Penn. St. 249 (1856). Where a bill is sent by a Canadian holder to the United States for collection and is dishonoured, the custom is to return the bill to the owner with the protest and the notices, and let him send them to the proper addresses.

In New Brunswick before the Dominion Act of 1874, it was held that a posted notice addressed to the drawee at the place where the bill was dated was not valid in the absence of proof that a notice sent to that office would reach him: Balloch v. Binney, 5 N. B. (3 Kerr) 440 (1847).

Endorsers who may wish to look to prior parties should be careful to see (1) that their proper address is given, and (2) that notice of dishonour has been given to such prior parties, and if not, to give it themselves within the legal delay.

§ 103

Dis

honour.

Notice by post.

ILLUSTRATIONS.

1. A notice deposited in the Toronto post office for an indorser residing there is as good as if left at his residence: Commercial Bank v. Eccles, 4 U. C. Q. B. 336 (1847).

2. A notice duly posted and addressed to an indorser in "York Township," in which he resided, was held sufficient, there being no evidence that it should have been otherwise addressed: Bank of U. C. v. Bloor, 5 U. C. Q. B. 619 (1849).

3. An indorser's agent gave a wrong address which was written by plaintiff's agent under his signature. A notice sent to the address given held sufficient: Vaughan v. Ross, 8 U. C. Q. B. 506 (1852).

4. Notice mailed between eight and nine in the evening of the day after protest held sufficient, though the post-mark was of the following day: Wilson v. Pringle, 14 U. C. Q. B. 230 (1856).

5. A note was presented for payment at G., where the indorser lived, and notice was mailed the following day at M., five miles distant, but not received at G. until the fourth day after dishonor. Held, sufficient: Taylor v. Grier, 17 U. C. Q. B. 222 (1858).

6. When a notary mailed a notice to a wrong address which reached the indorser about a week later, and there was some evidence of the latter having applied to plaintiff for further time, the court refused to disturb a verdict for plaintiff Leith v. O'Neill, 15 U. C. Q. B. 233 (1860).

7. An indorser died shortly before the maturity of the note. The bank which held it not being aware of his death sent the notice of dishonor addressed to him at Toronto, where the note was dated. The firm who had got it discounted took it up and sued his executor. They were aware, before the note matured, both of the death and of the will. Held, reversing 5 Ont. A. R. 458, that the notice was sufficient, and enured to the benefit of plaintiffs: Cosgrave v. Boyle, 6 S. C. Can. 165 (1881).

8. A notary in Montreal protested a note payable there, which was dated at Belleville. Being unable to decipher an indorsement, he put a facsimile of it on an envelope, addressing it to Belleville. The holder knew the indorser's name but had not told the notary. The indorser swore that he did not receive the notice. Held, that he was discharged: Baillie v. Dickson, 7 Ont. A. R. 759 (1882).

9. The address under the indorser's name need not be written by himself. It may be written by another with his knowledge and consent. Sending a notice to such address is sufficient, even if the holder has reason to know that it is not his residence or place of business: Hay v. Burke, 16 Ont. A. R. 463 (1889).

10. A note dated at Montreal payable at Albany, N. Y., wás protested there, and a notice addressed to the indorser at Montreal. Held, sufficient as to form, but invalid as it did not appear that the postage was prepaid: Howard v. Sabourin, 5 L. C. R. 45 (1854).

11. A notice which the notary swore was mailed on the evening of the last day for mailing, was held sufficient although it bore the

stamp of the following day: Doutre v. La Banque Jacques Cartier, § 103 De Bellefeuille C. C. Art. 2319 (1878). See also Stocken v. Collin, 7 M. & W. 515 (1841); New Haven Co. Bank v. Mitchell, 15 Conn. Through 206 (1842). the post.

12. Notice of protest sent to an indorser to a wrong address given by the maker when he got the note discounted, is not sufficient to bind the indorser: Merchants' Bank v. Cunningham, Q. R. 1 Q. B. 33 (1892).

13. "Under his signature" in this section does not mean "below his signature," but written so that the signature covers it. Where a wrong address of the indorser was written in pencil under his name, and no proof made as to who wrote it, a notice of protest sent to such address, not being the place where the note was dated, is insufficient: Banque Jacques Cartier v. Gagnon, Q. R. 5 S. C. 499 (1894).

14. Under the Dominion Act of 1874, a notice posted to the address of the indorser the day following dishonor is sufficient, al-· though he lives in the same town, and there is no local delivery: Merchants' Bank v. McNutt, 11 S. C. Can. 126 (1883).

15. A notice to an indorser posted at St. John, addressed "Mr. D. Duff, near Blake's Mills, Nashwaak," is not sufficient without proof that such a letter would probably reach him: Robinson v. Duff, 4 N. B. (2 Kerr) 206 (1843).

16. The holder got the address of an indorser from the payee of the note, with whom he did business, and addressed a notice to him there. It was afterwards learned that he had lately removed. Held, sufficient: Bank of New Brunswick v. Millican, 9 N. B. (4 Allen) 254 (1859).

17. It has been held in England that to address a letter to a person in a large town without any addition to the name of the person or of the town may be invalid. A letter addressed simply "W. Haynes, Bristol," held, not sufficient: Walter v. Haynes, R. & M. 149 (1824).

18. A notice addressed "Mrs. Susan Collins, Boston," held sufficient, there being no proof there was any other of the name, Collins, Boston," would probably have been held insufficient: v. Collins, 3 Allen, 440 (1862).

66 Mrs.
True

19. A drawer or indorser will be presumed not to have changed his address during the currency of the bill: Bank of Utica v. Phillips, 3 Wend. 408 (1829).

carriage

104. Where a notice of dishonour is duly ad- Misdressed and posted, as provided in the last preceding section, the sender is deemed to have given service. due notice of dishonour, notwithstanding any miscarriage by the post office. 53 V., c. 33, s. 49 (5).

$ 104

Notice by

post.

Excuse for delay.

Diligence.

If the address on the letter is that on the bill no question will arise. If, however, the holder, knowing that this is not the usual address or residence of the party, undertakes to send a notice to such address or residence he should be certain that he is correct. In such a case it would be prudent to send a notice to the address on the bill as well.

If the receipt of the notice is denied, plaintiff must prove that it was given: Macdougall v. Wordsworth, 8 U. C. C. P. 400 (1858); Merchants' Bank v. Macdougall, 30 U. C. C. P. 236 (1879); Hawkes v. Salter, 4 Bing. 715 (1828). A prɔtest is prima facie evidence of the service of notice of dishonor: sec. 11.

By R. S. C. c. 66, s. 83, as soon as any letter is deposited in the post office it ceases to be the property of the sender and becomes the property of the person to whom it is addressed. It is in accordance with principle that the loss should fall on the owner. See Bank of U. C. v. Smith, 3 U. C. Q. B. 358 (1846); Taylor v. Grier, 17 U. C. Q. B. 222 (1858); Shannon v. Hastings M. Ins. Co., 2 Ont. A. R. 81 (1877); Delaporte v. Madden, 17 L. C. J. at p. 32 (1872); Parker v. Gordon, 7 East, 385 (1806); Woodcock v. Houldsworth, 16 M. & W. 124 (1846); Dunlop v. Higgins, 1 H. L. Cas. 380 (1848).

105. Delay in giving notice of dishonour is excused where the delay is caused by circumstances beyond the control of the party giving notice, and not imputable to his default, misconduct or negligence.

2. When the cause of delay ceases to operate the notice must be given with reasonable diligence. 53 V., c. 33, s. 50 (1). Imp. Act, ibid.

The present section deals with the circumstances which excuse delay in giving notice of dishonor: the following sections with those which dispense with it entirely. The language used is very similar to that in section 91 regarding the excuses for delay in the presentment for payment; and in section 111, regarding excuses for delay in noting or protesting.

In England and the United States, where no provision § 105 exists similar to that in section 103, recognizing as suffi- Excuse for cient a notice posted to any party addressed to the place delay. where the bill is dated, if no other address is given, circumstances would excuse delay, which would not be sufficient in Canada. Notice does not require to be given until after presentment and dishonour. Where delay in presentment is excused, a notice mailed the following day is regular. The only circumstances likely to arise in Canada to cause excusable delay in giving notice, would be the death or sudden illness of the holder, or some accident to the person making out the notices, or to the messenger charged with taking them to the post office.

The following circumstances have been held in England and the United States sufficient to excuse delay: :

1. A state of war: see p. 252 ante.

2. An epidemic or other calamity, making communication impracticable: Windham Bank v. Norton, 22 Conn., 213 (1852); Tunno v. Lague, 2 Johns, (N.Y.) (1800).

3. Death or sudden illness of the holder or his agent who has the bill: Rothschild v. Currie, 1 Q. B. at p. 47 (1841); White v. Stoddard, 11 Gray (Mass.) 258 (1858).

4. Delay caused by the indorser having given a wrong or illegible address: Hewitt v. Thompson, 1 M. & Rob. 543 (1836); Siggers v. Brown, 1 M. & Rob. 520 (1836); Berridge v. Fitzgerald, L. R. 4 Q. B. 639 (1869).

5. An indorser could not be found when a bill was dishonored. Subsequently his address became known, and some time after a writ was served on him without any previous notice. Held, that he was released on account of not being notified when his address became known: Studdy v. Beesty, 60 L. T. N. S. 647 (1889); W. N. 1889, p. 14. See Baldwin v. Richardson, 1 B. & C. 245 (1823).

The holders of a bill received notice of its dishonour on Monday and learned that the drawer, the master of a vessel, had arrived in the Tyne. Further enquiries failed to reveal the precise place. On Thursday they sent a registered letter to him on his vessel, Newcastle-on-Tyne, which he received three days later. Held, that the delay was excused, and notice sufficient: The Elmville, [1904] P. 319.

A bill drawn in St. John, N.B., was payable in London, Eng., on Saturday, October 16th, and was dishonoured. Plaintiffs at Wolverhampton were the holders. A mail left