notice to the second company, unless it is the secretary's S. 49. duty to the first company to communicate the fact of dishonour to the second.1 But it is not necessary that the person who gives notice should at the time of giving notice be holder of the bill. An indorser may, on receiving notice, give notice in accordance with sub-section 14, though the bill has not been returned to him, and further, may give notice even without having received it, so long as he has not been discharged by failure to give notice.2

c For example, in Woodthorpe v. Lawes the agent did not mention any principal; in Harrison v. Ruscoe he by mistake named a party who was not his principal.

◄ A complete form of notice is given in the Appendix.5 But though it is advisable to give notice in some such form, it is not essential to specify the bill exactly, so long as it is sufficiently identified. Notices have been held to be sufficiently specific though they described the bill in question as a note, or as payable at a wrong bank, or as drawn by the person who was acceptor.8 A letter in the following terms, "I have received intimation from the C. D. Bank that your draft on A. B. has been dishonoured, and I have requested them to proceed on same," was held to be sufficient notice to the drawer, when he did not allege that there was more than one draft to which the notice might apply.9 It is not essential to state expressly that the bill has been dishonoured 10 or protested, or to make an express demand for payment.12

• Notice may be given to a business, or to the wife of a

1 Deep Sea Fishery Co. [1902], 1 Ch. 507.

2 Chapman v. Keane, 1835, 3 A. & E. 193.

3 1836, 6 L.J. Ex. 69.

4 1846, 15 M. & W. 231; 15 L.J. Ex. 110.

5 See p. 277, infra; 1 Bell's Com. 439.

6 Stockman v. Parr, 1843, 12 L.J. Ex. 415.

7 Bromage v. Vaughan, 1846, 16 L.J. Q.B. 10.

clerk at a merchant's place of
person who has no place of

8 Mellersh v. Rippen, 1852, 21
L.J. Ex. 222.

9 Shelton v. Braithwaite, 1841, 10 L.J. Ex. 218.

10 Paul v. Joel, 1858, 27 L.J. Ex. 380; aff. 1859, 28 L.J. Ex. 143.

11 Lowenthal, 1874, L.R. 9 Ch. 591. 12 Cook v. French, 1840, 9 L.J. Q.B. 281; King v. Bickley, 1842, 11 L.J.Q.B. 224; Everard v. Watson, 1853, 22 L.J. Q. B. 222.

S. 49. business, at his dwelling. A referee in case of need 2 is not for the purpose of receiving notice of dishonour the agent of the person who inserts his name,3 and a law-agent is not for this purpose the agent of his client.4

f See s. 50 (2).

g See s. 2.

Notice must be given to one or the other.5

Notice may be given on the day of dishonour, but action or diligence to enforce payment may not be raised against any party till the day after.

j In estimating what is reasonable for this purpose ordinary convenience and the other business and affairs of life are to be taken into account.7 The holder of a bill is not bound omissis omnibus aliis negotiis to devote himself to giving notice of its dishonour.8 A bill drawn by the defender, accepted by A., and indorsed by the defender to B., and by B. to the pursuer, was dishonoured by non payment. All the parties lived in London. On the morning after the dishonour the pursuer, who did not know where the defender lived, applied to B. for information. B. was from home, but on the same day at half-past five the pursuer went to him again and obtained the address. He then posted his notice of dishonour, but not till after six o'clock, in consequence of which the defender did not receive it till the following morning. It was found that the pursuer had used sufficient diligence, and that due notice had been given. When notice should in ordinary course have been given on a festival of the holder's religion, it was held that this was an exceptional circumstance.10 The Cardiff branch of the County of Gloucester Bank sent a bill to a London bank for presentment. The bill was dishonoured, and notice was given on the following busi

1 Bell's Com. 444; Thomson, 360. 2 S. 15.

3 Leeds Banking Co., 1865, L.R. 1 Eq. 1.

4 Crosse v. Smith, 1813, 1 M. & S. 545, per Lord Ellenborough, 553.

5 Baker, 1877, 4 Ch.D. 795; 1 Bell's Com. 444; Thomson, 360.

9

ness day, but by mistake to the Cirencester branch. On the S. 49. next day the London Bank telegraphed to the Cardiff branch, so that notice reached the Cardiff branch at the same date as if it had been given regularly from the first, and that branch in turn gave notice on the proper day.1 It was held that sufficient notice under this sub-section had been given to the Cardiff branch, either because notice had been sent to the right person at the wrong address, or because the mistake was corrected in due time by the telegram. Lord-Justice Collins dissented, on the ground that for this purpose the branches of a bank are separate parties,2 and that no notice had been given to the right party on the proper day.3

In reckoning the time within which notice should be given non-business days are excluded.*

Each branch of a bank through which a bill has been transmitted is to be considered as a separate party.5

1 "It is not disputed that it is a very frequent occurrence that a party having a bill of exchange tenders it for payment to the acceptor, and is refused. He cannot get payment. He is bound to give notice to the party who is the drawer, although he may be distant many miles from him, but if he puts a letter into the post at the right time it has been held quite sufficient. He has done all that he is expected to do. As far as he is concerned he has put the letter into the post, and whether that letter be delivered or not is a matter quite immaterial, because the act of the post-office is one for which he is not responsible." " The holder has to prove that the notice was addressed correctly according to his knowledge and posted. If he has by mistake addressed the notice wrongly, he must prove that the other party received it.8 It is a question of reasonable diligence whether the holder has sufficiently endeavoured to discover

1 See sub-sec. 14, infra.

2 Sub-s. 13, infra.

3 Fielding and Co. v. Corry, [1898], 1 Q. B. 268.

4 S. 92.

5 Clode v. Bayley, 1843, 12 M. & W. 51, 13 L.J. Ex. 17; approved Prince v. Oriental Bank Corporation, 1878, 3 A.C. 325, 332.

6 Dunlop v. Higgins, 1847, 9 D. 1407, affd. 1848, 6 Bell's App. 195, per Lord Cottenham, 207.

7 See Robertson v. Gamack, 1835, 14 S. 139; Stock v. Aitken, 1846, 9 D. 75; Stewart v. Wright, 1821, 1 S. 213, (n.e. 203).

8 Milligan v. Barbour, 1829, 7 S.

489.

S. 49. the address of the other party. A director of a company endorsed the company's bill by way of guarantee. Notice of dishonour was given to him at the company's offices, after he had ceased to attend there. The holder did not know his home address. The notice was in the circumstances held sufficient.1

S. 50.

Excuses for non-notice and delay.

50. (1.) 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. When the cause of delay ceases to operate the notice must be given with reasonable diligence.a

(2.) Notice of dishonour 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:

d

с

(b.) By waiver express or implied. Notice of dishonour may be waived before the time of

giving notice has arrived, or after the
omission to give due notice :

(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 ac-
ceptor is as between himself and the drawer
under no obligation to accept or pay the bill,
(5) where the drawer has countermanded
payment:

1 Berridge v. Fitzgerald, 1869, L.R. 4 Q.B. 639, but see s. 50, n.b

(d) As regards the indorser in the following cases, S. 50. namely, (1) where the drawee is a fictitious 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.h

a For example, if the drawer or indorser changes his address so that the holder is unable to find him within the prescribed time.1 But notice should be given so soon as the

address is discovered.2

b It is not sufficient to inquire for an indorser at the place where the bill is payable.3 It is probably sufficient to give notice at an address given on the bill, at least unless the holder knows the correct address of the party to whom notice is to be given.4

c See s. 49, n.1

d See s. 16.

e Notice has been held to be waived as against a party to a bill who prior to its being dishonoured informs the holder that the bill will not be paid, or that he has no fixed residence but will call and see the bill paid," or who induces the holder to delay presenting the bill, or who closes his place of business during business hours.8 When after the dishonour of a bill a party thereto acknowledges his indebtedness or asks for delay, it is to be inferred either that notice has been duly given or that it has been waived.9