§ 105 Liverpool on October 19th. Plaintiffs sent notice to the drawer by the next mail, which left on November 4th. Held, that the delay was excused: Tarratt v. Wilmot, 6 N. B. (1 Allen) 353 (1849). Excuse for Dispensed with. Reasonable diligence. The delay was held inexcusable in the following case: A bill was protested in Dublin, Ireland, on November 3rd. Mails for St. John, N.B., where the drawer and indorsers lived, left November 4th and 19th. Notices were sent only by the following mail, which arrived December 22nd. Held, that the drawer and indorsers were discharged: Bank of New Brunswick v. Knowles. 4 N. B. (2 Kerr) 219 (1843). 2. Care should be taken to give prompt notice of dishonour as soon as the cause of the excusable delay has ceased to exist, as otherwise the recourse and right of action against the drawer or endorser not notified may be lost. Reasonable diligence in giving such notice is a question of fact to be determined by the facts of the particular case. 106. Notice of dishonour is dispensed with,- The preceding section gives the circumstances in which delay in giving notice of dishonour is excused; the present and two following sections those in which notice is dispensed with entirely. The present section gives the circumstances which apply to both drawer and endorsers; the two following sections. those which apply to them severally. If a notice is sent otherwise than by post, and does not reach the party, from some cause for which the sender is not responsible, and the latter is not aware of the fact that the notice was not received, it will be dispensed with. If the sender becomes aware of the fact, or if the notice sent by post is to a wrong address, he should send a proper notice § 106 at once: Steinhoff v. Merchants' Bank, 46 U. C. Q. B. 25 Dispensed (1881). It has been held in England that ignorance of the place. of residence of a drawer or indorser dispenses with notice if due diligence is used to discover it: Browning v. Kinnear, Gow, 81 (1819). See Bateman v. Joseph, 12 East, 433 (1810); Beveridge v. Burgis, 3 Camp. 262 (1812); Williams v. Germaine, 7 B. & C. 469 (1827). But in Canada notice may be mailed to the place where the bill is dated: sec. 103. Notice of dishonor is not dispensed with because presentment is dispensed with, or because the drawer or indorser has reason to believe the bill will not be paid, or because the acceptor is dead and no representative can be found: Carew v. Duckworth, L. R. 4 Ex. at p. 319 (1869); Caunt v. Thompson, 7 C. B. 400 (1849); or because the drawer or endorser is dead: sec. 97 (c). (b) by waiver express or implied. with. Waiver. 2. Notice of dishonour may be waived before Time of. the time of giving notice has arrived, or after the omission to give due notice. 53 V., c. 33, s. 50 (26). Imp. Act, ibid. Waiver may be either in writing or oral. It may be on the bill itself: sec. 34 (b). The usual form of express waiver is for the drawer or endorser to add to his signature "protest waived" or analogous words. Where an acknowledgment of liability is relied upon to establish a waiver it must be made with full knowledge of the facts: Goodall v. Dolle, 1 T. R. 712 (1787); McFatridge v. Williston, 25 N. S. 11 (1892). A waiver of protest has been held not to be necessarily an admission that the instrument is genuine, or that the party is liable thereon: Royal Bank v. Maughan, 12 O. W. R. 899 (1908). ILLUSTRATIONS. 1. An indorser asked for time and promised to pay. Held, to be a waiver of notice: Bank of Upper Canada v. Cooley, 4 U. C. O. M'L. B. E. A.-19 § 106 S. 17 (1834). Where an indorser writes the holder that the maker of a note is insolvent to make him believe that presentment and notice Waiver of are unnecessary, it is a waiver of notice: Beckett v. Cornish, 4 U. Notice. C. Q. B. 138 (1847). 2. A promise to pay with knowledge of the facts is a waiver of notice: Bank of B. N. A. v. Ross, 1 U. C. Q. B. 199 (1843); Brown v. Marsh, 1 U. C. C. P. 438 (1852); Gillespie v. Marsh, ibid. 453 (1852); Burke v. Elliott, 15 U. C. Q. B. 610 (1857); Shaw v. Salmon, 19 U. C. Q. B. 512 (1860); Ross v. Wilson, 2 Rev. de Lég. 28 (1812); McLaurin v. Sequin, Q. R. 12 S. C. 63 (1897); Smith v. Lang, 22 C. L. T. 418 (1902); Mills v. Gibson, 16 L. J. C. P. 249 (1847); Woods v. Dean, 3 B. & S. 101 (1862); Cordery v. Colville, 32 L. J. C. P. 210 (1863); Bartholomew v. Hill, 5 L. T. N. S. 756 (1862); Kilby v. Rochussen, 18 C. B. N. S. 357 (1865); promise not sufficiently definite or well proved to amount to a waiver: Bank of Montreal v. Scott, 24 U. C. Q. B. 115 (1864); Reed v. Mercer, 16 U. C. C. P. 279 (1866). 3. A statement by the indorser of a dishonored note to the holder that he would see the maker apout it, and his subsequent statement that he had seen the maker, who promised to pay it as soon as he could, with a request not to "crowd the note," are not in themselves sufficient evidence of waiver of notice of dishonor: Britton v. Milsom, 19 Ont. A. R. 96 (1892). 4. An indorser wrote above his signature on the back of a note: "I hold myself liable for my note.' This was a waiver of notice of dishonor: Ranger v. Aumais, 5 Que. P. R. 450 (1903). 5. Waiver of protest by a curator in Quebec does not bind the insolvent Denenberg v. Mendelssohn, Q. R. 23 S. C. 128 (1903); Molsons Bank v. Steel, ibid 316 (1903). In re Boutin, Q. R. 12 S. C. 186 (1897) overruled. 6. Waiver of notice to the holder enures to the benefit of prior parties, as well as to subsequent holders: Rabey v. Gilbert, 30 L. J. Ex. 170 (1861). 7. Waiver of notice of dishonor may not be a waiver of presentment for payment: Keith v. Burke, 1 Cab. & E. 551 (1885). 8. Waiver of notice enures to the benefit of the holder of a bill, and of all the indorsers subsequent to the party to whom the waiver is made: Coulcher v. Toppin, 2 T. L. R. 657 (1886). 9. The fact that a party to a note is aware that it will not be paid on presentment, does not dispense with the necessity of giving him notice of dishonor: Greig v. Taylor, 15 V. L. R. 86 (1889). 10. The indorser of a note told the holder before maturity that he knew it would not be paid, and promised to send money to the bank where it was payable. Held, evidence for the jury of dispensation of notice of dishonor by waiver: Wright v. Barrett, 13 N. S. W. R. (Law) 206 (1892). 11. An indorser of a note, not yet due, being informed of the bankruptcy of the maker, said to the payee and holder: "I will have to provide for the note." This is not, as a matter of law, a waiver of notice of dishonor. The question should be left to the jury: Wiggins v. Bellve, 15 N. Z. 540 (1897). § 106 107. Notice of dishonour is dispensed with as Dispensed regards the drawer where, with. (a) the drawer and the drawee are the same Same person; (b) the drawee is a fictitious person or a person not having capacity to contract; person. Fictitious person. to drawer. (c) the drawer is the person to whom the bill Presented is presented for payment; tion. (d) the drawee or acceptor is, as between him- No obligaself and the drawer, under no obligation to accept or pay the bill; mand. (e) the drawer has countermanded payment. Counter53 V., c. 33, s. 50 (2 c). Imp. Act, ibid. In these cases the drawer is in reality the principal deb- Drawer principal tor, and except in the last the bill is not what on its face i debtor. purports to be. He is, therefore, on the principles of the law merchant not entitled to notice, which is accorded only to the person who in effect only promises to pay if the person primarily liable does not honor the bill on due presentment, and if notice of such dishonour is duly given him. Where drawer and drawee are the same person, or where the drawee is a fictitious person or a person not having capacity to contract, the holder may, if he choose, treat the instrument as a promissory note: sec. 26. The drawer would then be in the position of maker of the note, and so not entitled to notice of its dishonour. In the other instances notice is equally unnecessary. ILLUSTRATIONS. 1. Where the drawer had no funds in the hands of the acceptor and made no provision for the payment of the bill, he is liable without protest or notice of dishonor: Knapp v. Bank of Montreal, 1 L. C. R. 252 (1850); Bickerdike v. Bollman, 1 T. R. 405 (1786); Dickens v. Beal, 10 Pet. (U. S.) 572 (1836). 2. A drawer who had no effects in the hands of the drawees, or any reasonable grounds for expecting he would have or that the 107 bill would be honored, may be sued without previous notice of dishonor: Stayner v. Howatt, 15 N. S. (3 R. & G.) 267 (1882). Dispensed with. Fictitious person. Presented to 3. A bill drawn payable at the drawer's is presumably an accommodation bill, and he is not entitled to notice: Sharp v. Bailey, 9 B. & C. 44 (1829). 4. Presentment of the bill to the drawer, as the executor of the acceptor, renders notice to him unnecessary: Caunt v. Thompson, 7 C. B. 400 (1849). 108. Notice of dishonour is dispensed with as regards the endorser where,— (a) the drawee is a ficitious person or a person not having capacity to contract, and the endorser was aware of the fact at the time he endorsed the bill; (b) the endorser is the person to whom the bill endorser. is presented for payment; Accommodation. (c) the bill was accepted or made for his accommodation. 53 V., c. 33, s. 50 (2 d). Imp. Act. ibid. Notice need not be given to the endorser in these cases, because in (a) he has no reasonable ground for believing that the bill will be honoured: in (b) he is aware it is not paid: and in (c) he is the person who ought to pay it. Notice of dishonor is not dispensed with when a note becomes exigible in the Province of Quebec before the date of maturity under Art. 1092 C. C., on account of the insolvency of the maker and indorser: Banque Nationale v. Martel, Q. R. 17 S. C. 97 (1899). An indorser is entitled to notice of dishonor whether the drawee has funds in his hands or not: Griffin v. Phillips, 2 Rev. de Lég. 30 (1821); Knapp v. Bank of Montreal, 1 L. C. R. 252* (1850). NOTICE TO OTHERS THAN DRAWER AND ENDORSERS. The Act provides only for notice to the drawer and endorsers of a bill. The acceptor of a bill and maker of a note are liable without notice: secs. 128 and 185. |