Where drawer and drawee are the same person, or where § 50. the drawee is a fictitious person or a person not having capacity to contract, the holder may, if he choose, treat the instrument as a promissory note: section 5, s-s. 2. The drawer would then be in the position of maker of the note and so not entitled to notice of its dishonor. See p. 56 ante. In the other instances notice is equally unnecessary. ILLUSTRATIONS. 1. Where the drawer had no funds in the hands of the acceptor and made no provision for the payment of the bill, he is liable without protest or notice of dishonor: Knapp v. Bank of Montreal, 1 L. C. R. 252 (1850); Bickerdike v. Bollman, 1 T. R. 405 (1786); Dickens v. Beal, 10 Pet. (U. S.) 572 (1836). 2. A drawer who had no effects in the hands of the drawees, or any reasonable ground for expecting he would have or that the bill would be honored, may be sued without previous notice of dishonor: Stayner v. Howatt, 15 N. S. (3 R. & G.) 267 (1882). 3. A bill drawn payable at the drawee's is presumably an accommodation bill, and he is not entitled to notice: Sharp v. Bailey, 9 B. & C. 44 (1829). 4. Presentment of the bill to the drawer, as the executor of the acceptor, renders notice to him unnecessary: Caunt v. Thompson, 7 C. B. 400 (1849). indorser entitled to notice. (d.) As regards the indorser, in the following When cases, namely, (1) where the drawee is a fictitious not 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. Imp. Act, s. 50 (2) (d). $50. Notice need not be given to the indorser in these cases, because in (1) he has no reasonable ground for believing that the bill will be honored in (2) he is aware it is not paid and (3) he is the person who ought to pay it. An indorser is entitled to notice of dishonor whether the drawee has funds in his hands or not: Griffin v. Phillips, 2 Rev. de Leg. 30 (1821): Knapp v. Bank of Montreal, 1 L. C. R. 252 (1850). NOTICE TO OTHERS THAN DRAWER AND INDORSERS. The Act provides only for notice to the drawer and indorsers of a bill. The acceptor of a bill and maker of a note are liable without notice: section 52, s-s. 3; section 88, s-s 2. The liability of persons who are not parties to a bill, but, who may be guarantors of the bill or of some of the parties to it, or who may be liable on the consideration for which the bill is given, is not affected by the Act, but will remain subject to the laws in force in the several provinces. A person who has given a guarantee for the payment of a bill is liable without notice of dishonor: Palmer v. Baker, 22 U. C. C. P. 59 (1871); Warrington v. Furbor, 8 East, 242 (1807); Murray v. King, 5 B. & A. 165 (1821); Van Wart v. Woolley, 3 B. & C. 439 (1824); Walton v. Mascall, 13 M. & W. 72 (1844). It has also been laid down that the person who gives a guarantee for the price of goods to be supplied to the acceptor of a bill or the maker of a note is not entitled to notice of dishonor: Anderson v. Archibald, 3 N. S. D. 88 (1872); Holbrow v. Wilkins, 1 B. & C. 10 (1822); while if the goods are for the drawer of the bill he is entitled to notice Philips v. Astling, 2 Taunt. 206 (1809). See also Swinyard v. Bowes, 5 M. & S. 62 (1816); Camidge v. Allenby, 6 B. & C. 373 (1827); Smith v. Mercer, L. R. 3 § 50. Ex. 51 (1867); Carter v. White, 25 Ch. D. 666 (1883). As to those who have placed their names on bills in Quebec pour aval or as warrantors elsewhere, see the notes on section 56. protest of 51. Where an inland bill has been dishonored Noting or it may, if the holder thinks fit, be noted and inland bill. protested for non-acceptance or non-payment, as the case may be; but, subject to the provisions of this Act with respect to notice of dishonor, it shall not, except in the Province of Quebec, be necessary to note or protest any such bill in order to preserve the recourse against the drawer or indorser; but in the case of a bill drawn upon any person in the Province of Quebec, or payable or accepted at any place therein, in default of protest for non-acceptance or non-payment, as the case may be, and of notice thereof, the parties liable on the bill other than the acceptor are discharged, subject, nevertheless, to the exceptions in this section hereinafter contained: Imp. Act, s. 51 (1); C. C. 2298, 2319. Sec. 51 of Section 51 of the Imperial Act reads as follows: 'Where an inland bill has been dishonored it may, if the Act. holder think fit, be noted for non-acceptance or non-payment, as the case may be; but it shall not be necessary to note or protest any such bill in order to preserve the recourse against the drawer or indorser." It will be seen that the Canadian Act, for the provinces other than Quebec, is substantially the same as the Imperial Act. The words "subject to the provisions of this Act with respect to notice. of dishonor," were added in the Senate, to make it clear that § 51. while inland bills need not be noted or protested, there was no intention to relieve from the duty of giving notice of dishonor, as laid down in sections 48 and 49, when the drawer or indorsers were to be held liable. All bills must be By the latter part of the clause, Quebec retains its old protested law as embodied in articles 2298 and 2319 of the Civil in Quebec. Code which required a notarial protest with notice to the drawer and indorsers of an inland as well as a foreign bill. In the other provinces the holder of an inland bill may either protest it, or merely send notices of dishonor in accordance with section 49. As a protest makes prima facie proof not only of presentation and dishonor, but also of the service of the notices, section 93, s-s. 5, the practice of protesting in these other provinces has, as a rule, been adopted. If a bill sent for acceptance or collection is not to be protested in case of dishonor, special instructions should be given by attaching a memorandum of "no protest," or otherwise. Optional elsewhere. laws. The protesting of inland bills for non-acceptance or for better security, elsewhere than in Quebec, is only compulsory as a preliminary to an acceptance supra protest for honor: section 64; and a protest for non-payment, only as a preliminary to presentment for payment to the acceptor for honor, or referee in case of need: section 66. Conflict of In case of conflict, the laws governing presentment for acceptance or payment, and the necessity for or sufficiency of a protest, are those of the place where the act is done or the bill is dishonored; section 71, s-s. 2 (c). This principle is recognized in the second clause of the above sub-section, which lays down the rule for the provinces other than Quebec; but according to the last clause, every inland bill drawn upon any person in Quebec, or accepted at any place in that province, must be protested in order to hold the drawer and indorsers, even if it be drawn and made payable in another province. According to the 51. recognized rules of interpretation, this last clause being exceptional and explicit would govern, although it is certain that Parliament did not contemplate any such departure from the general rule. protest. The form for the noting of a bill for non-acceptance is Noting given as Form A in the first schedule to the Act. The protest of a bill need not be made out at the time, it is sufficient for the notary to make the necessary noting on the bill, and to extend it later, as of the day of the noting: section 92. When a bill is not paid on the day it falls due, but is expected to be on the following day, it is sometimes simply noted on the day of maturity. If it is not paid the next day as expected, the protest is extended and the notices of dishonor sent. The present section applies to promissory notes as well as to bills and cheques, with the modifications mentioned in section 88. foreign 2. Where a foreign bill, appearing on the face Protest of of it to be such, has been dishonored by non-accept- bill. ance, it must be duly protested for non-acceptance, and where such a bill, which has not been previously dishonored by non-acceptance, is dishonored by non-payment, it must be duly protested for nonpayment. If it is not so protested, the drawer and indorsers are discharged. Where a bill does not appear on the face of it to be a foreign bill, protest thereof in case of dishonor, except as in this section provided, is unnecessary. Imp. Act, s. 51 (2). The words "except as in this section provided" are not in the Imperial Act, but were inserted to meet the exceptional |