$ 46.

Fictitious drawee.

3. The dangerous illness of the maker of the note: Nowlin v. Roach, 4 N. B. (2 Kerr) 337 (1843).

4. Notice that the acceptor will not pay when due: Baker v. Birch, 3 Camp. 107 (1811); Hill v. Heap, D. & R. N. P. C. 57 (1823); ex parte, Bignold, 1 Deacon, 712 (1836). See also Nicholson v. Gouthit, 2 H. Bl. 609 (1796).

5. The fact of an acceptor being abroad, when the agent who accepted for him is at the place where the bill was addressed and accepted: Philips v. Astling, 2 Taunt. 206 (1809).

(b.) Where the drawee is a fictitious person: Imp. Act, s. 46 (2) (b).

Where the drawee is a fictitious person the holder may treat the instrument as a promissory note: section 5, s-s. 2; Smith v. Bellamy, 2 Stark. 223 (1817).

The fact of the drawee not having capacity to contract does not dispense with presentment for payment. The holder may treat such a bill as a promissory note: section 5, s-s. 2; and need not present it for acceptance section 41, 2 (a); but it may be that it will be paid if presented and the drawer and indorsers thereby discharged.

Drawee not (c.) As regards the drawer, where the drawee or

bound to

pay.

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: Imp. Act, s. 46 (2) (c).

A bill accepted for the accommodation of the drawer, need not be presented in order to charge him, where he has not provided funds to meet it: Stayner v. Howatt, 15 N. S. (3 R. & G.) 267 (1882); Terry v. Parker, 6 A. & E. 502 (1837); see Bowes v. Howe, 5 Taunt. 30 (1813); Wirth v. Austin, L. R. 10 C. P. 689 (1875); and in re Boyse, Crofton v. Crofton, 33 Ch. D. 612 (1886). It should be

presented to charge the indorsers: Knapp v. Bank of Mon- $46. treal, 1 L. C. R. 252 (1850); Saul v. Jones, 1 E. & E. 59

(1858).

accommo

indorser.

(d.) As regards an indorser, where the bill was Bill for accepted or made for the accommodation of that dation of indorser, and he has no reason to expect that the bill would be paid if presented: Imp. Act, s. 46 (2) (d).

Where a bill was made and accepted for the accommodation of the last indorser and he made no provision for it, he is liable without presentment but the prior indorsers are not Turner v. Samson, 2 Q. B. D. 23 (1876); see Foster v. Parker, 2 C. P. D. 18 (1876).

(e.) By waiver of presentment, express or im- Waiver. plied. Imp. Act, s. 46 (2) (e).

Waiver is binding without consideration. It may be either before or after the time for presentment. It may be in writing or verbal, or inferred from conduct or circumstances. It may be in or on the bill itself: section 16 (b).

ILLUSTRATIONS.

1. A declaration of inability to pay and request for time is a waiver as regards the party making it: McDonell v. Lowry, 3 U. C. O. S. 302 (1834).

2. A promise to pay after the bill is due with knowledge of the facts is a waiver: McIver v. McFarlane, Taylor U. C. 113 (1824); Macaulay v. McFarlane, Rob. & Jos. Dig. 493 (1841): McCunniffe v. Allen, 6 U. C. Q. B. 377 (1851); McCarthy v. Phelps, 30 U. C. Q. B. 57 (1870); City Bank v. Hunter, 2 Rev. de Leg. 171 (1847); Johnson v. Geoffrion, 7 L. C. J. 125 (1863); Watters v. Lordly, 4 N. B. (2 Kerr) 18 (1842); Allen v. McNaughton, 9 N. B. (4 Allen) 234 (1858); St. Stephen B. Ry. Co. v. Black, 13 N. B. (2 Han.) 139 (1870); Colwell v. Robertson,

§ 46. 17 N. B. 481 (1877); Whitehouse v. Bedell, 26 N. B. 46 (1886); Deering v. Hayden, 3 Man. L. R. 219 (1886); Hopley v. Dufresne, 15 East 275 (1812); Croxon v. Worthen, 5 M. & W. 5 (1839); Armstrong v. Chadwick, 127 Mass. 156 (1879).

Dishonor by non

3. Where a bank suspended payment on the day a cheque should have been presented, and the drawer sued the bank for the full amount of his deposit, including this cheque, it was held that he had waived presentment and was liable: Blackley v. McCabe, 16 Ont. A. R. 295 (1889).

4. Waiver of presentment by the payee does not bind the drawer McLellan v. McLellan, 17 U. C. C. P. 109 (1866).

5. Part payment is a waiver: Rice v. Bowker, 3 L. C. R. 305 (1853).

6. A promise by an indorser to pay a composition on a note if it was not paid at maturity, is not a waiver of presentment or of protest Union Bank v. Gibeault, 12 Q. L. R. 145 (1886).

7. An offer to give new notes which the holder does not accept is not a waiver: Bank of New Brunswick v. Knowles, 4 N. B. (2 Kerr) 219 (1843).

8. The payee indorsed a note to plaintiff. The maker having absconded, plaintiff on the day of maturity took it to the payee, who handed it back to plaintiff, asking him to keep it. This was a waiver of presentment: Masters v. Stubbs, 9 N. B. (4 Allen) 453 (1860).

9. Waiver of notice of dishonor is not waiver of presentment: Hill v. Heap, D. & R. N. P. C. 57 (1823).

10. It is no defence that the party making the promise to pay did not know its legal effect: Third Nat. Bank v. Ashworth, 102 Mass. 503 (1870).

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

against

2. Subject to the provisions of this Act, when § 47. a bill is dishonored by non-payment, an immediate Recourse right of recourse against the drawer, acceptor and parties indorsers accrues to the holder. Imp. Act, s. 47.

As to presentment for payment, see section 45; and as to when it is excused, section 46. As to when a bill is overdue, see sections 10 and 14. The provisions of the Act referred to in this section are sections 48 to 51, and 64 to 67.

In the Imperial Act the word acceptor is not used. Chalmers distinguishes between the right of recourse and the right of action. It has been held in England that the latter exists against a drawer or indorser only from the time when notice of dishonor is or ought to be received and not from the time when it is sent: Castrique v. Bernabo, 6 Q. B. 498 (1844).

The acceptor may be sued on the afternoon of the last day of grace after demand and refusal: Sinclair v. Robson, 16 U. C. Q. B. 211 (1858); Ontario Bank v. Foster, 6 L. N. 398 (1883); Leftley v. Miils, 4 T. R. 170 (1791); Estes v. Tower, 102 Mass. 66 (1869).

In Quebec the insolvency of the acceptor before the maturity of the bill makes it immediately exigible as against him: Lovell v. Meikle, 2 L. C. J. 69 (1853); Corcoran v. Montreal Abattoir Co., 6 L. N. 135 (1882); Ontario Bank v. Foster, 6 L. N. 398 (1883).

Where the acceptance is conditional the condition must be fulfilled or the acceptor is not liable: Dufresne v. Jacques Cartier Building Society, 5 R. L. 235 (1873); Fullerton v. Chapman, 2 N. S. D. 470 (1870); Potters v. Taylor, 20 N. S. 362, 7C. L. T. 434 (1888); Ontario Bank v. McArthur, 5 Man. L. R. 381 (1889); Gammon v. Schmoll, 5 Taunt. 344 (1814).

liable.

$ 47.

Notice of dishonor

and effect

of nonnotice.

In an action on a bill or note payable at a particular place it is not necessary to show that there were not sufficient funds at the place named; all that is necessary, even as against an indorser, is to show presentment, nonpayment and notice of dishonor: McDonald v. McArthur, 8 Ont. A. R. 553 (1883).

48. Subject to the provisions of this Act, when a bill has been dishonored by non-acceptance or by non-payment, notice of dishonor must be given to the drawer and each indorser, and any drawer or indorser to whom such notice is not given is discharged: Imp. Act, s. 48.

The provisions of the Act which dispense with notice of dishonor in certain cases, and excuse delay in giving notice in others are in section 50.

The rules governing notice of dishonor are to be found in section 49. As to when a bill is dishonored by nonacceptance or non-payment, see sections 43 and 47.

The liability of the drawer and indorsers of a bill being contingent upon its non-acceptance or non-payment, notice of dishonor must be given to them, save in the exceptional cases mentioned in section 50, in order to hold them liable.

By section 56, any person who signs a bill otherwise than as a drawer or acceptor, incurs the liabilities of an indorser to a holder in due course, and is subject to all the provisions of the Act respecting indorsers.

Under French law, indorsers are discharged for want of notice, but a drawer is not, unless he can show that the drawee had funds to meet the bill: Code de Com. Art. 170. Under the Act, it is only a drawer as to whom the drawee or acceptor is under no obligation to accept or pay the bill, that must prove this: section 46, s-s. 2 (c).