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ARTICLE VIII.

NOTICE OF DISHONOR.

Section 160. To whom notice of dishonor must be given. 161. By whom given.

162. Notice given by agent.

163. Effect of notice given on behalf of holder. 164. Effect where notice is given by party entitled thereto.

165. When agent may give notice.

166. When notice sufficient.

167. Form of notice.

168. To whom notice may be given.

169. Notice where party is dead.

170. Notice to partners.

171. Notice to persons jointly liable.

172. Notice to bankrupt.

173. Time within which notice must be given.

174. Where parties reside in same place.

175. Where parties reside in different places.
176. When sender deemed to have given due notice.
177. Deposit in post-office, what constitutes.

178. Notice to subsequent parties, time of.

179. Where notice must be sent.

180. Waiver of notice.

181. Whom affected by waiver.

182. Waiver of protest.

183. When notice dispensed with.

184. Delay in giving notice; how excused.
185. When notice need not be given to drawer.
186. When notice need not be given to indorser.

Section 187. Notice of non-payment where acceptance re

fused.

188. Effect of omission to give notice of non-ac

ceptance.

189. When protest need not be made; when must be made.

§ 160. To whom notice of dishonor must be given.Except as herein otherwise provided, when a negotiable instrument has been dishonored by non-acceptance or nonpayment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged (a).

(a) The burden of proving that due notice was given is on the holder. Marks v. Boone, 24 Fla. 177. Where a note gives the holder an option to declare the whole sum due upon default in the payment of interest, he must allege and prove presentment and notice of dishonor in order that he may hold an indorser. Galbraith v. Shepard, 43 Wash. 698. The cashier of a bank, when informed of an outstanding check, after it had been placed in the mails for transmission to the drawee for payment, stated to the cashier of the bank remitting the check that it would be paid if the drawer had sufficient funds when the check was received, otherwise not: -Held, that such information did not constitute a dishonor of the check, so as to require the holder to give notice to the indorser before payment had, in fact, been refused on the receipt of the check by the drawee. Citizens Bank v. First Nat. Bank (Iowa), 113 N. W. Rep. 481. The rule as to notice does not apply to guarantors. Brown v. Curtiss, 2 N. Y. 225; Allen v. Rightmere, 20 Johns. 365; Breed v. Hillhouse, 7 Conn. 523; Roberts v. Hawkins, 70 Mich. 566; Hungerford v. O'Brien, 37 Minn. 306. And proceedings against the maker are necessary only where there is a guaranty of collection. Brown v. Curtiss,

supra.

§ 161. By whom given.-The notice may be given by or on behalf of the holder, or by or on behalf of any party

to the instrument who might be compelled to pay it to the holder, and who, upon taking it up, would have a right to reimbursement from the party to whom the notice is given (a).

(a) It was once held that no party could give a valid notice unless he was the holder at the time. Tindal v. Brown, 1 Term Kep. 167. But this doctrine, after having been followed in other cases (ex parte Barclay, 7 Ves. 597; Stewart v. Kennett, 2 Camp. 177), was expressly overruled in the case of Chapman v. Keane (3 Adol. & Ellis, 193), in which most of the previous decisions were reviewed. But notice by a stranger is not sufficient. Lawrence v. Miller, 16 N. Y. 235, 237; Chanoine v. Fowler, 3 Wend. 173; Brailsford v. Williams, 15 Md. 151. And a party who has been discharged by laches, and cannot in any event bring an action on the instrument, is deemed a stranger for this purpose. Harrison v. Ruscoe, 15 L. J. Exch. 110; 15 M. & W. 231. A drawee who refuses acceptance cannot give notice. Stanton v. Blossom, 14 Mass. 116. A firm executed two promissory notes payable to the order of a member of the firm, which notes were first indorsed by J. and then by the firm, and were delivered before maturity to the plaintiff bank. The notes not being paid at maturity, notice of protest was served upon the firm and with it, under separate cover, addressed to J in care of the firm, was a notice of protest directed to J, which the firm were requested to forward to him. The other member of the firm immediately mailed such notice of protest to J, at the latter's regular address for receiving mail in the city of New York:- Held, that while J was presumptively an accommodation indorser for the firm which made the notes, and while the firm could not, therefore, in their own behalf, give him a valid notice of protest, the firm could and did, on behalf of the plaintiff bank, and as its agents, give such a notice. Traders' Nat. Bank v. Jones, 104 App. Div. (N. Y.) 433.

162. Notice given by agent.- Notice of dishonor may be given by an agent either in his own name (a) or in the name of any party entitled to give notice, whether that party be his principal or not (b).

(a) Drexler v. McGlynn, 99 Cal. 143. But a notice made out by a notary public and signed by mistake with the name of the maker of the note instead of with his own name, without the authority of the maker, is insufficient. Cabot Bank v. Warner, 92 Mass. 522.

(b) Banks as agents for collection have authority to receive and transmit notices on behalf of the owners of the paper. West River Bank v. Taylor, 34 N. Y. 128, 130; Colt v. Noble, 5 Mass. 167; Haynes v. Birks, 3 Bor. & Pul. 599; Robson v. Bennett, 2 Taunt. 388. An agent in giving notice represents and acts on behalf of his principal, and this, though he may be a notary and act in his official character. Lawrence v. Miller, 16 N. Y. 235, 238.

§ 163. Effect of notice given on behalf of holder. Where notice is given by or on behalf of the holder, it enures for the benefit of all subsequent holders and all prior parties who have a right of recourse against the party to whom it is given (a).

(a) But the holder is not bound to give notice to any one but his immediate indorser. West River Bank v. Taylor, 34 N. Y. 128, 131; Linn v. Horton, 17 Wis. 150, 153.

§ 164. Effect where notice is given by party entitled thereto. Where notice is given by or on behalf of a party entitled to give notice, it enures for the benefit of the holder and all parties subsequent to the party to whom notice is given.

§ 165. When agent may give notice.- Where the instrument has been dishonored in the hands of an agent, he may either himself give notice to the parties liable thereon, or he may give notice to his principal. If he give notice to his principal, he must do so within the same time as if he were the holder, and the principal, upon the receipt of such notice, has himself the same time for giving notice as if the agent had been an independent holder (a).

(a) Rosson v. Carroll, 90 Tenn. 90. But if the agent has failed to give notice to his principal in due time, the latter is cut off, though he may thereafter use due diligence in communicating notice to antecedent parties. (Id.)

§ 166. When notice sufficient.-A written notice need not be signed (a), and an insufficient written notice may be supplemented and validated by verbal communication. A misdescription of the instrument does not vitiate the notice unless the party to whom the notice is given is in fact misled thereby (b).

(a) See Bank v. Dibrell, 91 Tenn. 301; Spann v. Baltzell, 1 Fla. 301; Kilgore v. Bulkley, 14 Conn. 362; Tobey v. Lenning, 14 Pa. St. 483.

Wis. 679. Where the fact that there is no

(b) Aiken V. Marine Bank, 16 instrument is misdescribed, the other instrument to which the notice could be may be shown by extrinsic

applied

evidence. Cayuga

County protest

Bank v. Worden, 6 N. Y. 19. But a notice of signed by a notary public, and personally delivered by him to the indorser is not sufficient to charge the latter, where it appears that the notice was addressed to another person than the indorser, and stated that the holder looked to such person for the payment of the note. Marshall v. Sonneman, 216 Pa. St. 65.

§ 167. Form of notice. The notice may be in writing or merely oral, and may be given in any terms which sufficiently identify the instrument, and indicate that it has been dishonored by non-acceptance or non-payment (a). It may in all cases be given by delivering it personally (b) or through the mails (c).

(a) Second National Bank v. Smith, 118 Wis. 18; Sasscer v. Farmers' Bank, 4 Md. 409; Brewster v. Arnold, 1 Wis. 264. A notice which omits an essential feature of the note, or misdescribes it, is an imperfect one, but not necessarily invalid. It is invalid only where it fails to give that particular information which it would have given but for its particular imperfection; and even

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