The present sub-section deals with the circumstances $ 50. which excuse delay in giving notice of dishonor: sub-section 2 with the circumstances which dispense with it entirely. The language used is very similar to that in section 46 regarding the excuses for delay in the presentment for payment; and in section 51, s-s. 9, regarding excuses for delay in noting or protesting.

In England and the United States where no provision exists similar to that in section 49, s-s. 4, recognizing as sufficient, a notice posted to any party addressed to the place 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 dishonor. 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, sudden illness, or some accident to the person making out or posting the notices, or some accident to the messenger charged with taking them to the post office, or the loss of the letters on the way without negligence.

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

1. A state of war; see p. 264 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.) 1 (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. Browne, 1 M. & Rob. 520 (1836); Berridge v. Fitzgerald, L. R. 4 Q. B. 639 (1869).

§ 50.

Notice dispensed with.

If imprac. ticable.

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).

6. A bill drawn in St. John, N.B., was payable in London, Eng., on Saturday, October 16th, and was dishonored. Plaintiff's at Wolverhampton were the holders. A mail left Liverpool on October 19th. Plaintiff's sent notice to the drawer by the next mail which left on November 4th. Held, that the delay was excused Tarratt v. Wilmott, 6 N. B. (1 Allen) 353 (1849).

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. Notice of dishonor is dispensed with

(a) When, after the exercise of reasonable diligence, notice as required by this Act cannot be given to or does not reach the drawer or indorser sought to be charged: Imp. Act, s. 50, (2) (a).

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 at once: Steinhoff v. Merchants' Bank, 46 U. C. Q. B. 25 (1881).

It has been held in England that ignorance of the place $ 50. 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. 202 (1812): Williams v. Germaine, 7 B. & C. 469 (1827). But in Canada notice may be mailed to the place where the bill is dated: section 49, s-s. 4.

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 indorser is dead: section 49 (i).

waived.

(b.) By waiver express or implied: notice of dis- Notice honor may be waived before the time of giving notice has arrived, or after the omission to give due notice: Imp. Act, s. 50 (2) (b).

The waiver may be on the bill itself: section 16 (). See ante p. 98. Where an acknowledgement of liability is relied upon to establish a waiver it must be made with full knowledge of the facts: Goodall v. Dolley, 1 T. R. 712 (1787).

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. S. 17 (1835). Where an indorser writes the holder that the maker of a note is insolvent to make him believe that presentment and notice are unnecessary, it is a waiver of notice: Beckett v. Cornish, 4 U. 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 (1844);

§ 50. 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 (1858); Shaw v. Salmon, 19 U. C. Q. B. 512 (1864); Ross v. Wilson, 2 Rev. de Leg. 28 (1812); 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 (1865).

When drawer not entitled to

notice.

Drawer

principal debtor.

3. 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. 130 (1861).

4. Waiver of notice enures to the benefit of the holder of a bill, and of all indorsers subsequent to the party to whom the waiver is made: Coulcher v. Toppin, 2 T. L. R. 657 (1886).

(c.) As regards the drawer in the following cases, namely, (1) where drawer and drawee are the same person, (2) where the drawee is a fictitious person or a person not having capacity to contract, (3) where the drawer is the person to whom the bill is presented for payment, (4) where the drawee or acceptor is, as between himself and the drawer, under no obligation to pay the bill, (5) where the drawer has countermanded payment; Imp. Act, s. 50, (2) (c).

In these cases the drawer is in reality the principal debtor, and except in the last the bill is not what on its face it 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 dishonor is duly given him.

Where drawer and drawee are the same person, or where $50. 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: section 5, s-s. 2. The drawer would then be in the position of maker of the note and so not entitled to notice of its dishonor. See p. 56 ante. 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 ground for expecting he would have or that the bill would be honored, may be sued without previous notice of dishonor: Stayner v. Howatt, 15 N. S. (3 R. & G.) 267 (1882).

3. A bill drawn payable at the drawee'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).

indorser

entitled to

notice.

(d.) As regards the indorser, in the following When cases, namely, (1) where the drawee is a fictitious not person or a person not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the bill, (2) where the indorser is the person to whom the bill is presented for payment, (3) where the bill was accepted or made for his accommodation. Imp. Act, s. 50 (2) (d).