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the address of an indorser, and if it appear that it is not § 49. the real address of the drawer the holder must show that he had made due enquiry: Barnewell v. Mitchell, 3 Conn. 101 (1819); Lowery v. Scott, 24 Wend. (N. Y.) 358 (1840); Pierce v. Struthers, 27 Penn. St. 249 (1856). Where a bill is sent by a Canadian holder to the United States for collection and is dishonored, the custom is to return the bill to the owner with the protest and the notices, and let him send them to the proper addresses.
In New Brunswick before the Dominion Act of 1874, it was held that a posted notice addressed to the drawee at the place were the bill was dated was not valid in the absence of proof that a notice sent to that office would reach him: Balloch v. Binney, 5 N. B. (3 Kerr) 440 (1847).
Indorsers who may wish to look to prior parties should be careful to see (1) that their proper address is given, and (2) that notice of dishonor has been given to such prior parties, and if not, to give it themselves within the legal delay.
1. A notice deposited in the Toronto post office for an indorser residing there is as good as if left at his residence: Commercial Bank v. Eccles, 4 U. C. Q. B. 336 (1847).
2. A notice duly posted and addressed to an indorser in "York Township" in which he resided, was held sufficient, there being no evidence that it should have been otherwise addressed Bank of U. C. v. Bloor, 5 U. C. Q. B. 619 (1849).
3. An indorser's agent gave a wrong address which was written by plaintiff's agent under his signature. A notice sent to the address given held sufficient: Vaughan v. Ross, 8 U. C. Q. B. 506 (1852).
4. Notice mailed between eight and nine in the evening of the day after protest held sufficient, though the post-mark was of the following day: Wilson v. Pringle, 14 U. C. Q. B. 230 (1856).
5. A note was presented for payment at G., where the indorser lived, and notice was mailed the following day at M., five miles distant, but not received at G, until the fourth day after dishonor. Held, sufficient: Taylor v. Grier, 17 U. C. Q. B. 222 (1858).
6. When a notary mailed a notice to a wrong address which reached the indorser about a week later, and there was some evidence of the latter having applied to plaintiff for further time, the court refused to disturb a verdict for plaintiff Leith v. O'Neill, 19 U. C. Q. B. 233 (1860).
7. An indorser died shortly before the maturity of the note. The bank which held it not being aware of his death sent the notice of dishonor addressed to him at Toronto where the note was dated. The firm who had got it discounted took it up and sued his executor. They were aware, before the note matured, both of the death and of the will. Held, reversing 5 Ont. A. R. 458, that the notice was sufficient, and enured to the benefit of plamtiffs Cosgrave v. Boyle, 6 S. C. Can. 165 (1881).
8. A notary in Montreal protested a note payable there, which was dated at Belleville. Being unable to decipher an indorsement, he put a fac simile of it on an envelope addressing it to Belleville. The holder knew the indorser's name but did not tell the notary. The indorser swore that he did not receive the notice. Held, that he was discharged: Baillie v. Dickson, 7 Ont. A. R. 759 (1882).
9. The address under the indorser's name need not be written by himself. It may be written by another with his knowledge and consent. Sending a notice to such address is sufficient, even if the holder has reason to know that it is not his residence or place of business: Hay v. Burke, 16 Ont. A. R. 463 (1889).
10. A note dated at Montreal payable at Albany, N.Y., was protested there, and a notice addressed to the indorser at Montreal. Held, sufficient as to form, but invalid as it did not appear that the postage was prepaid: Howard v. Sabourin, 5 L. C. R. 45 (1854).
11. A notice which the notary swore was mailed on the § 49. evening of the last day for mailing, was held sufficient although it bore the stamp of the following day: Doutre v. La Banque Jacques Cartier, 4 L. N. 153 (1880); Stocken v. Collin, 7 M. & W. 515 (1841); New Haven Co. Bank v. Mitchell, 15 Conn. 206 (1842).
12. Under the Dominion Act of 1874, a notice posted to the address of the indorser the day following dishonor is sufficient, although he lives in the same town, and there is no local delivery: Merchants' Bank v. McNutt, 11 S. C. Can. 126 (1883).
13. A notice to an indorser posted at St. John, addressed "Mr. D. Duff, near Blake's Mills, Nashwaak," is not sufficient without proof that such a letter would probably reach him: Robinson v. Duff, 4 N. B. (2 Kerr.) 206 (1843).
14. The holder got the address of an indorser from the payee of the note, with whom he did business, and addressed a notice to him there. It was afterwards learned that he had lately removed. Held, sufficient: Bank of New Brunswick v. Millican, 9 N. B. (4 Allen) 254 (1859).
15. It has been held in England that to address a letter to a person in a large town without any addition to the name of the person or of the town may be invalid. A letter addressed simply "W. Haynes, Bristol," held, not sufficient: Walter v. Haynes, R. & M. 149 (1824).
16. A notice addressed "Mrs. Susan Collins, Boston," held sufficient, there being no proof there was any other of the name. "Mrs. Collins, Boston," would probably have been held insufficient True v. Collins, 3 Allen, 440 (1862).
17. A drawer or indorser will be presumed not to have changed his address during the currency of the bill: Bank of Utica v. Phillips, 3 Wend. 408 (1829).
5. Where a notice of dishonor is duly addressed Miscarand posted, as above provided, the sender is post deemed to have given due notice of dishonor,
§ 49. notwithstanding any miscarriage by the post office: Imp. Act, s. 49 (15); R. S. C. c. 123, s. 23.
If the address on the letter is that on the bill no question will arise. If however the holder knowing that this is not the usual address or residence of the party, undertakes to send a notice to such address or residence, he should be certain that he is correct. In such a case it would be prudent to send a notice to the address on the bill as well.
If the receipt of the notice is denied, plaintiff must prove that it was given: Macdougall v. Wordsworth, 8 U. C. C. P. 400 (1858); Merchants' Bank v. Macdougall, 30 U. C. C. P. 236 (1879); Hawkes v. Salter, 4 Bing. 715 (1828). A protest is prima facie evidence of the service of notice of dishonor section 93, s-s. 5.
By R. S. C. c. 35, s. 43, as soon as any letter is deposited in the post office it ceases to be the property of the sender and becomes the property of the person to whom it is addressed. It is in accordance with principle that the loss should fall on the owner. See Bank of U. C. v. Smith, 3 U. C. Q. B. 358 (1846); Taylor v. Grier, 17 U. C. Q. B. 222 (1858); Shannon v. Hastings, M. Ins. Co. 2 Ont. A. R. 81 (1877); Delaporte v. Madden, 17 L. C. J. at p. 32 (1872); Parker v. Gordon, 7 East, 385 (1806); Woodcock v. Houldsworth, 16 M. & W. 124 (1846); Dunlop v. Higgins, 1 H. L. Cas. 380 (1848).
Excuses for non
50. Delay in giving notice of dishonor is exnotice and cused 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 : Imp. Act, s. 50 (1).
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).