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Notice to non-part
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.
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2. Where a bill, when dishonored, is in the § 49. hands of an agent, he may either himself give Dishonornotice 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.
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.
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 the 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 be given. 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.
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.
Heretofore in Canada the usage has been for the holder at the time of dishonor to send notice to all parties entitled who do not to it through the post, addressed to them at the place at
which the bill or note is dated. This is very frequently not the real address of the indorsers, especially when maker and payee or drawer and drawee reside in different parts of the country, and a great many of such notices never reach the parties to whom they are addressed. If the holder should not send a notice to all the parties, an indorser who in such a case has neglected to give his real address, may find that his recourse against antecedent parties is entirely gone. By sub-section 5 when such a notice is addressed and posted, the sender is deemed to have given due notice, and by the present sub-section notice is "sufficiently given," when given in this manner. It is not likely that in such a case where the notice does not reach an indorser that he will be held to have "received due notice" within the meaning of sub-section 3 ante, so as to make the delay run as to notice to antecedent parties; but the miscarriage being owing to his own fault and neglect he might be held responsible under certain circumstances. At all events, if in such a case, he should lose no time in giving notice to antecedent parties, if the holder has not notified them.
In England the holder must use due diligence to ascertain the correct address of the drawer and indorsers. It has been laid down that while there might not be any reason for addressing a notice of dishonor to an indorser at the place where the bill was dated, yet it was proper to leave it to a jury whether a notice to the drawer might not reasonably be addressed there: Burmester v. Barron, 17 Q. B. 828 (1852); Clarke v. Sharpe, 3 M. & W. 166 (1838); Mann v. Moors, Ry. & M. 249 (1825).
In the United States it has generally been held that the place of date of a bill is not even prima facie evidence of