§ 45. (7.) The holder is not bound to present to the drawee, in the cases defined in (4 a, b, and c), if he is not to be found at the several places of payment there stated. (m.) A refusal on the part of one of them to pay, does not dispense with presentment for payment to the others, as in the case of presentment for acceptance. (n.) Where, owing to accidents happening at the post-office, the presentment is not made, or is not made in due time, the holder will not, it is thought, be deprived of his recourse against the drawer and prior indorsers. If he has been authorised to make presentment through the post-office, then so soon as he commits the bill to the post-office he has no longer control of it, and the principle of the cases which have been decided as to the completion of a contract through the post-office seems to apply. The leading case is Dunlop v. Higgins, 2nd July, 1847, 9 D. 1407, 24th Feb. 1848, 6 Bell, App. 195. In that case, a letter accepting an offer was posted in Liverpool on 30th January, but dated by mistake 31st January, and owing to a delay in the post-office, was not delivered in Glasgow till the afternoon of 1st February. If the offer was not accepted in course of post— i.e., by a letter which would reach the offerers on the 31st January, the acceptance would be too late. It was contended that the acceptors were responsible for the delay in the postoffice; but it was held both in the Court of Session and in the House of Lords, that the delay caused by the post-office did not prevent the completion of the contract. Lord Cottenham said:"It is a very frequent occurrence that a party having a bill of exchange, which he tenders for payment to the acceptor, and if acceptance is refused, is bound to give the earliest notice to the drawer. That person may be resident many miles distant from him. If he puts a letter into the post at the right time it has been held quite sufficient: he has put the letter into the post, and whether that letter be delivered or not is a matter quite immaterial, because for accidents happening at the post-office he is not responsible." In the House Fire Insurance Company v. Grant, 4 Ex., Div. 216, where the posting of a letter of allotment, which was never delivered, was held to complete the contract of a share- $ 45. delay or non for payment. 46. (1.) Delay in making presentment for payment Excuses for is excused when the delay is caused by circumstances presentment beyond the control of the holder, and not imputable to his default, misconduct, or negligence (a). When the cause of delay ceases to operate presentment must be made with reasonable diligence (b). (2.) Presentment for payment is dispensed with, Where, after the exercise of reasonable diligence (b) presentment, as required by this Act, cannot be effected. The fact that the holder has reason to believe that (b.) Where the drawee is a fictitious person (d). $ 46. (d.) As regards an indorser, where the bill was accepted or made for the accommodation of that indorser, and he has no reason to expect that the bill would be paid if presented. (e.) By waiver of presentment, express or implied (ƒ). (a.) E.g., The sudden illness or death of the holder, or of the agent employed by him to present, or distance from a postoffice, or unavoidable business, Darbishire v. Parkes, 6 East. 3. (b.) See note (e) on § 39. (c.) The rule that presentment must be made, although the drawee be bankrupt, or insolvent, or has stopped payment, in re Agra Bank ex parte Tondeur, L. R. 5, Eq. 160, Smith's Mercantile Law, 236, is not altered. (d.) The holder may treat the bill in this case as a promissory note, vide § 5 (2), and the drawer will then be held to be the maker, and liable in the same way as the acceptor. (e.) E.g., Where the acceptor is an accommodation party, and the drawer is bound to put him in funds to meet the bill at maturity; also where a cheque is drawn upon a banker, who has declined to honour the cheques of the drawer. (f.) In Cairns' Trustees v. Brown, 26th June, 1836, 14 Sh. 999, a drawer who induced the holder to delay presentment, and thereafter, at his own request, had the bill sent to him to receive payment, and then protested it for non-pay-, ment. It was held that he had waived his right to due negotiation. In Allhusen & Sons v. Mitchell & Company, 23rd Feb. 1870, 8 M. 600, the acceptor of a bill became bankrupt before its maturity, and the holders did not present for payment. After an interval of two years the holders sued the drawers for payment, and were met by the defence that the bill had not been presented. It was held that the drawers had waived their right to state this plea, by writing letters subsequent to the date, when the bill became overdue, in which they asked indulgence for two or three weeks, and by implication acknowledged liability for the amount. $ 46. non-payment. 47. (1.) A bill is dishonoured by non-payment (a) Dishonour by when it is duly presented for payment (a) and payment is refused or cannot be obtained, or (b) when presentment is excused (b) and the bill is overdue (c) and unpaid. (2.) Subject to the provisions of this Act (d) when a bill is dishonoured by non-payment, an immediate right of recourse against the drawer and indorsers accrues to the holder (e). (a.) Vide, § 45. (b.) Vide, § 46. (c.) Vide, SS 14 and 45. (d.) A holder has no recourse against the drawer and prior indorsers when he has failed to present a bill payable after sight for acceptance or to negotiate it within a reasonable time, or in the case of a bill, which has been materially altered, vide § 64, or where their signatures have been cancelled, vide § 63 (2). Where the holder of a bill refuses to receive payment, supra protest, he has no recourse against any person who would have been discharged by such payment, vide 68 (7). There is no recourse on the bill against a person not having capacity to contract, vide § 22, nor against a drawer and indorser without recourse, vide § 16. Where the bill has been accepted for honour it must be presented to the acceptor for honour, and protested, if dishonoured by him, before recourse is taken against the drawer, vide § 67 I $ 47. Notice of dis (2, 4). To preserve the right of recourse, the holder must take the steps prescribed in §§ 48, 49, 50, and 51. (e.) Vide § 2. 48. Subject to the provisions of this Act (a), when a effect of non- bill has been dishonoured by non-acceptance or by non honour and notice. payment (b), notice of dishonour must be given to the drawer and each indorser, and any drawer or indorser to whom such notice is not given is discharged (c): Provided that— (1.) Where a bill is dishonoured by non-acceptance, and notice of dishonour is not given, the rights of a holder in due course (d) subsequent to the omission, shall not be prejudiced by the omission. (2.) Where a bill is dishonoured by non-acceptance and due notice of dishonour is given, it shall not be necessary to give notice of a subsequent dishonour by non-payment unless the bill shall in the meantime have been accepted (e). (a.) The omission to give notice of dishonour does not discharge the drawer and indorsers in the cases mentioned in § 50, and, in the case of a bill payable on demand being dishonoured by non-payment, only discharges them in a question with the then holder. If such a bill subsequently comes into the hands of a holder in due course, vide § 29, and is presented by him for payment before it is overdue-i.e., before it appears on the face of it to have been in circulation for an unreasonable length of time, vide § 36 (3), he has recourse against the drawer and indorsers, notwithstanding the provisions of this section, vide § 38 (2). It is no excuse for the omission to give notice that the drawer or indorser has not in point of fact suffered loss thereby. (b.) Vide §§ 43 and 47. (c.) The holder can avail himself of a notice given by an |