(a.) Where, after the exercise of reasonable § 46. diligence, presentment, as required by this Act, when cannot be effected;

The fact that the holder has reason to believe that the bill will, on presentment, be dishonored, does not dispense with the necessity for presentment Imp. Act, s. 46 (2) (a).

The dispensing with presentment for payment under the present sub-section should be distinguished from the delay in presentment which is excused under the preceding clause. In many of the cases the distinction is not kept in mind. The circumstances which excuse delay in notice of dishonor or dispense with it are to be found in section 50.

The different modes in which presentment may be made, and the order in which they should be attempted are set out in section 45. If after the exercise of reasonable diligence, a bill cannot be presented in any one of these ways, presentment is dispensed with entirely: Forward v. Thompson, 12 U. C. Q. B. 194 (1854).

Whether due diligence has been used is a mixed question of law and fact: Perley v. Howard, 4 N. B. (2 Kerr) 518 (1844).

impracticable.

ILLUSTRATIONS.

The following have been held not to be sufficient reasons for dispensing with presentment :

1. The fact of the bill being overdue when indorsed: Davis v. Dunn, 6 U. C. Q. B. 327 (1850).

2. The insolvency of the acceptor: Quebec Bank v. Ogilvy, 3 Dorion 200 (1888); Esdaile v. Sowerby, 11 East 117 (1809); Bowes v. Howe, 5 Taunt, 30 (1813); Sands v. Clarke, 8 C. B. 751 (1849).

$ 46.

Fictitious drawee.

3. The dangerous illness of the maker of the note: Nowlin v. Roach, 4 N. B. (2 Kerr) 337 (1843).

4. Notice that the acceptor will not pay when due : Baker v. Birch, 3 Camp. 107 (1811); Hill v. Heap, D. & R. N. P. C. 57 (1823); ex parte, Bignold, 1 Deacon, 712 (1836). See also Nicholson v. Gouthit, 2 H. Bl. 609 (1796).

5. The fact of an acceptor being abroad, when the agent who accepted for him is at the place where the bill was addressed and accepted: Philips v. Astling, 2 Taunt. 206 (1809).

(b.) Where the drawee is a fictitious person: Imp. Act, s. 46 (2) (b).

Where the drawee is a fictitious person the holder may treat the instrument as a promissory note: section 5, s-s. 2; Smith v. Bellamy, 2 Stark. 223 (1817).

The fact of the drawee not having capacity to contract does not dispense with presentment for payment. The holder may treat such a bill as a promissory note section 5, s-s. 2; and need not present it for acceptance section 41, 2 (a); but it may be that it will be paid if presented and the drawer and indorsers thereby discharged.

Drawee not (c.) As regards the drawer, where the drawee or

bound to

pay.

acceptor is not bound, as between himself and the drawer, to accept or pay the bill, and the drawer has no reason to believe that the bill would be paid if presented: Imp. Act, s. 46 (2) (c).

A bill accepted for the accommodation of the drawer, need not be presented in order to charge him, where he has not provided funds to meet it: Stayner v. Howatt, 15 N. S. (3 R. & G.) 267 (1882); Terry v. Parker, 6 A. & E. 502 (1837); see Bowes v. Howe, 5 Taunt. 30 (1813); Wirth v. Austin, L. R. 10 C. P. 689 (1875); and in re Boyse, Crofton v. Crofton, 33 Ch. D. 612 (1886). It should be

presented to charge the indorsers: Knapp v. Bank of Mon- $46. treal, 1 L. C. R. 252 (1850); Saul v. Jones, 1 E. & E. 59

(1858).

accommo

indorser.

(d.) As regards an indorser, where the bill was Bill for accepted or made for the accommodation of that dation of indorser, and he has no reason to expect that the bill would be paid if presented: Imp. Act, s. 46 (2) (d).

Where a bill was made and accepted for the accommodation of the last indorser and he made no provision for it, he is liable without presentment but the prior indorsers are not Turner v. Samson, 2 Q. B. D. 23 (1876); see Foster v. Parker, 2 C. P. D. 18 (1876).

(e.) By waiver of presentment, express or im- Waiver. plied. Imp. Act, s. 46 (2) (e).

Waiver is binding without consideration. It may be either before or after the time for presentment. It may be in writing or verbal, or inferred from conduct or circumstances. It may be in or on the bill itself: section 16 (b).

ILLUSTRATIONS.

1. A declaration of inability to pay and request for time is a waiver as regards the party making it: McDonell v. Lowry, 3 U. C. O. S. 302 (1834).

2. A promise to pay after the bill is due with knowledge of the facts is a waiver: McIver v. McFarlane, Taylor U. C. 113 (1824); Macaulay v. McFarlane, Rob. & Jos. Dig. 493 (1841): McCunniffe v. Allen, 6 U. C. Q. B. 377 (1851); McCarthy v. Phelps, 30 U. C. Q. B. 57 (1870); City Bank v. Hunter, 2 Rev. de Leg. 171 (1847); Johnson v. Geoffrion, 7 L. C. J. 125 (1863); Watters v. Lordly, 4 N. B. (2 Kerr) 13 (1842); Allen v. McNaughton, 9 N. B. (4 Allen) 234 (1858); St. Stephen B. Ry. Co. v. Black, 13 N. B. (2 Han.) 139 (1870); Colwell v. Robertson,

§ 46. 17 N. B. 481 (1877); Whitehouse v. Bedell, 26 N. B. 46 (1886); Deering v. Hayden, 3 Man. L. R. 219 (1886); Hopley v. Dufresne, 15 East 275 (1812); Croxon v. Worthen, 5 M. & W. 5 (1839); Armstrong v. Chadwick, 127 Mass. 156 (1879).

Dishonor by non

3. Where a bank suspended payment on the day a cheque should have been presented, and the drawer sued the bank for the full amount of his deposit, including this cheque, it was held that he had waived presentment and was liable: Blackley v. McCabe, 16 Ont. A. R. 295 (1889).

4. Waiver of presentment by the payee does not bind the drawer McLellan v. McLellan, 17 U. C. C. P. 109 (1866).

5. Part payment is a waiver: Rice v. Bowker, 3 L. C. R. 305 (1853).

6. A promise by an indorser to pay a composition on a note if it was not paid at maturity, is not a waiver of presentment or of protest Union Bank v. Gibeault, 12 Q. L. R. 145 (1886).

7. An offer to give new notes which the holder does not accept is not a waiver: Bank of New Brunswick v. Knowles, 4 N. B. (2 Kerr) 219 (1843).

8. The payee indorsed a note to plaintiff. The maker having absconded, plaintiff on the day of maturity took it to the payee, who handed it back to plaintiff, asking him to keep it. This was a waiver of presentment: Masters v. Stubbs, 9 N. B. (4 Allen) 453 (1860).

9. Waiver of notice of dishonor is not waiver of presentment: Hill v. Heap, D. & R. N. P. C. 57 (1823).

10. It is no defence that the party making the promise to pay did not know its legal effect: Third Nat. Bank v. Ashworth, 102 Mass. 503 (1870).

47. A bill is dishonored by non-payment (a) payment. when it is duly presented for payment and payment is refused or cannot be obtained, or (b) when presentment is excused and the bill is overdue and unpaid :

against

2. Subject to the provisions of this Act, when § 47. a bill is dishonored by non-payment, an immediate Recourse right of recourse against the drawer, acceptor and parties indorsers accrues to the holder. Imp. Act, s. 47.

As to presentment for payment, see section 45; and as to when it is excused, section 46. As to when a bill is overdue, see sections 10 and 14. The provisions of the Act referred to in this section are sections 48 to 51, and 64 to 67.

In the Imperial Act the word acceptor is not used. Chalmers distinguishes between the right of recourse and the right of action. It has been held in England that the latter exists against a drawer or indorser only from the time when notice of dishonor is or ought to be received and not from the time when it is sent: Castrique v. Bernabo, 6 Q. B. 498 (1844).

The acceptor may be sued on the afternoon of the last day of grace after demand and refusal : Sinclair v. Robson, 16. U. C. Q. B. 211 (1858); Ontario Bank v. Foster, 6 L. N. 398 (1883); Leftley v. Miils, 4 T. R. 170 (1791); Estes v. Tower, 102 Mass. 66 (1869).

In Quebec the insolvency of the acceptor before the maturity of the bill makes it immediately exigible as against him: Lovell v. Meikle, 2 L. C. J. 69 (1853); Corcoran v. Montreal Abattoir Co., 6 L. N. 135 (1882) ; Ontario Bank v. Foster, 6 L. N. 398 (1883).

Where the acceptance is conditional the condition must be fulfilled or the acceptor is not liable: Dufresne v. Jacques Cartier Building Society, 5 R. L. 235 (1873); Fullerton v. Chapman, 2 N. S. D. 470 (1870); Potters v. Taylor, 20 N. S. 362, 7C. L. T. 434 (1888); Ontario Bank v. McArthur, 5 Man. L. R. 381 (1889); Gammon v. Schmoll, 5 Taunt. 344 (1814).

liable.