is and, with the exercise of reasonable diligence, § 49. he can be found: Imp. Act, s. 49 (9).

Sub-section 4 provides that a notice posted shall not be invalid by reason that the party to whom it is addressed is dead. As the present clause is imperative where the death is known and a representative can be found, that subsection will be limited to the cases where the party giving notice does not know of the death or cannot find such representative. Chalmers, p. 160, says there was no English decision on the point.

ILLUSTRATIONS.

See also illustrations under sub-section 4, post p. 287.

1. A notice of non-payment, merely To the exccutrix or executor of the late Mr. Jones, Toronto "is bad: Bank of B. N. A. v. Jones, 8 U. C. Q. B. 86 (1851).

2. Where an indorser died intestate and no administrator had been appointed when the note matured, a notice addressed to him at his last residence was held good: Gillespie v. Marsh, 1 U. C. C. P. 453 (1852).

3. Where S. an indorser died and notices were sent addressed to the "Administrators of S.'s estate, at B." and also at C., where the deceased had lived, and it appeared that they reached them, the estate was held liable: McKenzie v. Northrop, 22 U. C. C. P. 383 (1872).

4. The indorser, a married woman, died intestate. A notice was addressed to the husband as executor of his wife and received by him. The wife's estate was held liable: Merchants' Bank v. Bell, 29 Grant 413 (1881).

5. Where an indorser has recently died and no administrator or executor can be found, a notice addressed to the "legal representative" of deceased, is sufficient: Pillow v. Hardeman, 3 Humphrey (Tenn.) 538 (1842).

$ 49.

Notice to non-part

ners.

Time for notice.

6. A notice addressed to one of several executors or administrators is sufficient: Bealls v. Peck, 12 Barb. 245 (1851).

(j.) Where there are two or more drawers or indorsers who are not partners, notice must be given to each of them, unless one of them has authority to receive such notice for the others: Imp. Act, s. 49 (11).

The contrary was held in Upper Canada: Bank of Michigan v. Gray, 1 U. C. Q. B. 422 (1841). Chalmers says, p. 161, that there was no English decision on the point. The Act adopted the rule in the United States : Willis v. Green, 5 Hill (N. Y.) 232 (1843); Miser v. Trovinger, 7 Ohio St. 281 (1857); Boyd v. Orton, 16 Wis. 495 (1863).

(k). The notice may be given as soon as the bill is dishonored, and must be given not later than the next following juridical or business day: Imp. Act, s. 49 (12).

The Imperial Act provides that notice must be given "within a reasonable time" after dishonor. If the parties live in the same place it should be sent so as to arrive the day after dishonor, if in different places, so as to go off by next day's post if there is one. The Canadian Act has adopted the old rule in force in Ontario: R. S. C. c. 123, s. 23. In Quebec the holder had three days after protest to give notice: C. C. Art. 2331.

For questions as to time of giving notice under the old law, see Nassau v. O'Reilly, Rob. & Jos. Dig. 498 (1838); Bank of B. N. A. v. Ross, 1 U. C. Q. B. 199 (1843); Chapman v. Bishop, 1 U. C. C. P. 432 (1852); Brent v. Lees, 2 Rev. de Leg. 335 (1820).

See also illustrations under sub-section 4, post p. 287.

ed bill in

agent.

2. Where a bill, when dishonored, is in the § 49. hands of an agent, he may either himself give Dishonor notice to the parties liable on the bill, or he may hands of give notice to his principal. If he gives notice to his principal, he must do so within the same time as if he were the holder, and the principal, upon receipt of such notice, has himself the same time for giving notice as if the agent had been an independent holder: Imp. Act, s. 49 (13).

This and the following sub-section lay down the rule for successive notices of dishonor, a practice not followed in Canada before the Act, at least in Ontario or Quebec, where the usage has been for the holder at the time of dishonor to give notice to all the parties through the post office in accordance with the rules laid down in sub-section 4.

See illustrations under the next sub-section.

antecedent

3. Where a party to a bill receives due notice Notice to of dishonor, he has, after the receipt of such parties. notice, the same period of time for giving notice to antecedent parties that the holder has after the dishonor: Imp. Act, s. 49 (14).

Each party receiving notice of dishonor has the whole of the following business day to send notice to any party to the bill whom he desires to hold liable.

As the usage in Canada has been for the holder to give notice to all parties entitled to it, he should either do so still, or let the parties whom he notifies know that he is not giving notice to the others so that they may take steps to protect themselves if necessary.

See note to sub-section 4, post p. 287, as to indorsers who do not give their address.

$ 49.

When notice shall be given.

ILLUSTRATIONS.

1. A holder in the country gives to his banker there a bill payable in London. The banker sends it to his London agent, who presents it and gives notice of dishonor to the country banker. The latter, the day after getting notice, notifies tlie customer, who in turn notifies his indorser. The latter has received due notice: Bray v. Hadwen, 5 M. & S. 68 (1816).

2. An indorser received a notice of dishonor from the post office on Sunday. Held, that he had until Tuesday to give notice to antecedent parties, as he was not bound to open his letter until Monday morning: Wright v. Shawcross, 2 B. & A. at p. 501, n. (1819).

3. Different branches of a bank are considered as distinct parties for the purpose of this sub-section Clode v. Bayley, 12 M. & W. 51 (1843); Prince v. Oriental Bank, 3 App. Cas. at p. 332 (1878); Steinhoff v. Merchants' Bank, 46 U. C. Q. B. 25 (1881).

4. A party pays a bill supra protest for the honor of an indorser who is abroad and to whom he posts the bill the same day. The latter by return post sends notice of dishonor to the drawer. Although this is not received until six days after dishonor it is in time: Goodall v. Polhill, 1 C. B. 233 (1845).

5. The holder in order to charge an earlier party by notice from himself, must send the notice as promptly as if to his own immediate indorser: Rowe v. Tipper, 13 C. B. 249 (1853).

6. The one day allowed by law to give notice cannot be extended to allow an agent and his principal to confer: ex parte Prange, L. R. 1 Eq. 1 (1865).

4. Notice of the protest of dishonor of any bill payable in Canada shall, notwithstanding anything in this section contained, be sufficiently given if it is addressed in due time to any party to such bill

entitled to such notice, at his customary address § 49. or place of residence or at the place at which such bill is dated, unless any such party has, under his signature, designated another place; and in such latter case such notice shall be sufficiently given. if addressed to him in due time at such other place; and such notice so addressed shall be sufficient, although the place of residence of such party is other than either of such above mentioned places; and such notice shall be Through deemed to have been duly served and given for all purposes if it is deposited in any post office, with the postage paid thereon, at any time during the day on which such protest or presentment has been made, or on the next following juridical or business day; such notice shall not be invalid by reason of the fact that the party to whom it is addressed is dead: R. S. C. c. 123, ss. 5, 23; C. C. 2328.

post office.

law.

The Imperial Act has no provision exactly corresponding Source of to this sub-section. It is taken in part from section 5 of chapter 123 R. S. C., which was first enacted in 1874, and applied to the whole of Canada; and in part from section 23 of that chapter which applied to Ontario alone, and Article 2328 of the Civil Code which applied to Quebec. The last clause was added in harmony with the decision of the Supreme Court in the case of Cosgrave v. Boyle, noted below. If the death of the party is known to the party giving notice, then the notice should be given to the personal representative of the deceased, if he can be found: clause (k) ante.