independent of each other. Either can be waived and the other insisted upon." 65 Protest is an added requisite in case of a foreign bill. Logically, therefore, a waiver of protest should waive neither presentment nor notice; but protest is so often inexactly used by business men to express presentment and notice as well as a technical protest that the statute has accepted this use of language and given effect to it.66

§ 1187. Excuses for failure or delay in giving notice.

Section 112. [WHEN NOTICE IS DISPENSED WITH.] Notice of dishonor is dispensed with when, after the exercise of reasonable diligence, it cannot be given to or does not reach the parties sought to be charged.

Section 113. [DELAY IN GIVING NOTICE: HOW EXCUSED.] Delay in giving notice of dishonor is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to this default, misconduct or negligence. When the cause of delay ceases to operate, notice must be given with reasonable diligence.

Section 114. [WHEN NOTICE NEED NOT BE GIVEN TO DRAWER.] Notice of dishonor is not required to be given to the drawer in either of the following cases:

(1) Where the drawer and drawee are the same person; (2) When the drawee is a fictitious person or a person not having capacity to contract;

(3) When the drawer is the person to whom the instrument is presented for payment;

(4) Where the drawer has no right to expect or require that the drawee or acceptor will honor the instrument;

(5) Where the drawer has countermanded payment. Section 115.-[WHEN NOTICE NEED NOT BE GIVEN TO INDORSER.] Notice of dishonor is not required to be given to an indorser in either of the following cases:(1) Where the drawee is a fictitious person or a person

65 Hall v. Crane, 213 Mass. 326, 327, 100 N. E. 554. See also Baer v. Hoffman, 150 N. Y. App. D. 473, 135 N. Y. S. 28. But see contra, Baumeister v. Kuntz, 53 Fla. 340, 42 So. 886.

66 Atkinson v. Skidmore, 152 Ky. 413, 153 S. W. 456; Frank-Taylor-Kendrick Co. v. Voissement, 142 La. 973, 77 So. 895.

not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the instrument;

(2) Where the indorser is the person to whom the instrument is presented for payment;

(3) Where the instrument was made or accepted for his accommodation.

§ 1188. Effect of notice of non-acceptance; protest.

Section 116. [NOTICE OF NON-PAYMENT WHERE ACCEPTANCE REFUSED.] Where due notice of dishonor by non-acceptance has been given notice of a subsequent dishonor by non-payment is not necessary, unless in the meantime the instrument has been accepted.

Section 117. [EFFECT OF OMISSION TO GIVE NOTICE OF NON-ACCEPTANCE.] An omission to give notice of dishonor by non-acceptance does not prejudice the rights of a holder in due course subsequent to the omission.67 Section 118. [WHEN [WHEN PROTEST NEED NOT BE MADE; WHEN MUST BE MADE.] Where any negotiable instrument has been dishonored it may be protested for non-acceptance or non-payment, as the case may be; but protest is not required except in the case of foreign bills of exchange.68

§ 1189. Discharge of instrument.

ARTICLE VIII

DISCHARGE OF NEGOTIABLE INSTRUMENTS

Section 119. [INSTRUMENT; HOW DISCHARGED.] A negotiable instrument is discharged:—

(1) By payment in due course by or on behalf of the principal debtor;

(2) By payment in due course by the party accommo

67 In the Wisconsin Act these words are added "but this shall not be construed to revive any liability discharged by such omission."

68 Protest is not conclusive proof of due presentment and notice. Demelman v. Brazier, 198 Mass. 458, 84 N. E. 856.

dated, where the instrument is made or accepted for accommodation;

(3) By the intentional cancellation thereof by the holder; (4) By any other act which will discharge a simple contract for the payment of money;

(5) When the principal debtor becomes the holder of the instrument at or after maturity in his own right; 69

It has been frequently pointed out 70 that paragraph four is a blunder. An accord and satisfaction, or payment before maturity, will discharge a simple contract for the payment of money, but unless the Statute has changed the law, will not discharge a negotiable instrument against a subsequent holder in due course.71

Subsections 1 and 5 introduce a question of suretyship by the use of the term "principal debtor." The words "person primarily liable" should have been inserted here.

Subsection 2 covers the case of a principal debtor who is not the party primarily liable, and subsections 1 and 5 should have been confined to dealing with the person primarily liable on the instrument whether he has assumed that position for accommodation or not. When an accommodation maker pays a note at maturity the note is legally discharged. He will have a right to recover from the accommodated indorser, not, however, on the note but on a collateral obligation; and if equity should regard the note as still alive for the purpose of subrogating the surety to the creditor's claim against the principal debtor,72 this should be regarded as effective only between these parties on equitable principles.

§ 1190. Discharge of individual parties.

Section 120.-[WHEN PERSONS SECONDARILY LIABLE ON, DISCHARGED.] A person secondarily liable on the instrument is discharged:

(1) By any act which discharges the instrument;

69 In the Illinois Act subsection (4) is omitted.

70 E. g., 26 Harv. L. Rev. 588, 593. 71 Daniel, Neg. Inst., § 1233; supra, § 1178.

72 In Walker v. Chicago, etc., R. Co., 277 Ill. 451, 115 N. E. 659, however, it was held that a joint maker of a note who was in fact a surety might buy the note without thereby discharging it.

(2) By the intentional cancellation of his signature by the holder;

(3) By the discharge of a prior party;

(4) By a valid tender of payment made by a prior party; (5) By a release of the principal debtor, unless the holder's right of recourse against the party secondarily liable is expressly reserved;

(6) By any agreement binding upon the holder to extend the time of payment, or to postpone the holder's right to enforce the instrument, unless made with the assent of the party secondarily liable, or unless the right of recourse against such party is expressly reserved.73

The difficulties introduced in the preceding section by the words "principal debtor" are continued in this section. A proposed amendment of the section which would have restored the rules commonly in force before the passage of the act was to strike out subsections (3) (5) and (6), [subsection (4) then becoming (3)] and to add a new subsection:

"(4) A party who as between himself and another is a surety, is also discharged by any act which under the law of suretyship discharges a surety; but such a discharge shall not affect the rights of a subsequent holder in due course." This amendment was not, however, adopted and it seems

73 In the Illinois Act subsection (3) reads: "(3) By a valid tender of payment made by a prior party." To subsection 5 there is added "or unless the principal debtor be an accommodating party." Subsection (6) is amended to read as follows: By an agreement in favor of the principal debtor binding upon the holder to extend the time of payment, or to postpone the holder's right to enforce the instrument, unless made with the assent, prior or subsequent, of the party secondarily liable, or unless the right of recourse against such party is expressly reserved, or unless the principal debtor be an accommodating party." In the Missouri Act there is added to subsection (3) "except when

such discharge is had in bankruptcy proceedings." In the Wisconsin Act there is inserted a new subsection: (4a) By giving up or applying to other purposes collateral security applicable to the debt, or, there being in the holder's hands or within his control the means of complete or partial satisfaction, the same are applied to other purposes." The words "prior or subsequent" are inserted after "assent" in subsection (6) and the words "or unless he is fully indemnified" are added to the subsection. In the Maryland and New York Acts the words "unless made with the assent of the party secondarily liable, or" in subsection (6) are omitted.

probable that the Negotiable Instruments Law will be construed as effecting a change in the law where indulgence is given to a secondary party who, as between himself and an antecedent party is a principal debtor.74-75

§ 1191. Effect of payment by a party secondarily liable.

Section 121.-[RIGHT OF PARTY WHO DISCHARGES INSTRUMENT.] Where the instrument is paid by a party secondarily liable thereon, it is not discharged; but the party so paying it is remitted to his former rights as regards all prior parties, and he may strike out his own and all subsequent indorsements, and again negotiate the instrument, except:

(1) Where it is payable to the order of a third person, and has been paid by the drawer; and

(2) Where it was made or accepted for accommodation, and has been paid by the party accommodated.76

The provision of this section is literally inapplicable where the party secondarily liable who pays is an anomalous indorser who was liable to the payee under section 64 (1), since previous to the payment the indorser has never had a title to which he can be remitted.” The last clause of the section should properly have been "where it was made, accepted or indorsed for accommodation,” etc., but in spite of the failure to cover expressly the case of an accommodated indorser, payment by such a person would extinguish the instrument.78

§ 1192. Renunciation without consideration.

Section 122. [RENUNCIATION BY HOLDER.] The holder may expressly renounce his rights against any party to the instrument, before, at or after its maturity. An absolute and unconditional renunciation of his rights against the

74-75 See infra, § 1260.

76 See Assets Realization Co. v. Mercantile Nat. Bank, 167 N. Y. App. Div. 757, 153 N. Y. S. 156.

"Quimby v. Varnum, 190 Mass. 211, 76 N. E. 671; but see Graves v. Neeves,

183 Ill. App. 235; Lill v. Gleason, 92 Kan. 754, 142 Pac. 287; Pease v. Tyler, 78 Wash. 24, 138 Pac. 310.

78 Josephsohn v. Gens, 85 N. Y. Misc. 372, 147 N. Y. S. 451. See Secs. 119, 196.