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definite meaning in the one case, and, by the unwritten law, an uncertain meaning in the other. Excuse of protest of a foreign bill, at least when in the form of a written waiver, such as "waiving protest,' on the bill, is then, apart from statute, naturally to be taken as referring to the distinctive act of protest, and nothing else;' unless perhaps the term has received a different interpretation in the practice of the parties. On the other hand, waiving the protest of paper not requiring protest is an act, as has just been stated, of doubtful import; how it has been interpreted by the courts has already been seen.: By the better view it excuses presentment and notice. By the Statute however, as we have elsewhere seen, waiver of protest, whether of foreign bills or other negotiable instruments, is a waive all steps.

§ 5. EXCUSE OF NOTICE. What is referred to now, as in the case of excuse of present ment above considered, is excuse of notice, excluding cases of excuse of notice and other steps; o in other words, Subject for conthe cases now referred to are those in which the strict sense of only question raised is upon the failure of the term. holder or indorser to give notice of dishonor.

Such failure is not justified by any mere waiver of presentment or demand, for such a waiver may be made in confident expectation that the maker or acceptor will be Narrow effect ready and anxious to pay, and will therefore offer of the excuse. payment without waiting to be requested.' Nor, it seems, will an excuse for making presentment, created by law, excuse the requirement of notice. Thus the absconding of the maker or acceptor to parts unknown, though in some States making pre

4 Id.

That is fairly to be implied from language in Union Bank v. Hyde, 6 Wheat. 572. See also Coddington v. Davis, 1 Comst. 186.

3 Compare Coddington v. Davis, supra.
8 Ante, pp. 168, 169; and see the two cases just cited.

6 N. I. L. 8 118. 6 For those cases see 2, supra.

? Compare Berkshire Bank v. Jones, 6 Mass. 524. But waiver of 'notice and protest ' waives demand. Timberlake v. Thayer, 76 Miss. 76. Bank of Old Dominion v. McVeigh, 26 Gratt. 755.

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sentment unnecessary, does not dispense with the requirement of notice.' So too in States in which presentment is excused by law because of the death of the maker, it seems that indorsers are nevertheless entitled to notice of non-payment.” And a personal representative of an indorser deceased is entitled to notice as much as would the indorser himself have been had he lived.8

Indeed, omitting to give notice of dishonor is no more lightly to be excused than is omitting to take any of the other steps required by the law. The law merchant will not, it seems, excuse an omission to give notice except upon a waiver plainly having in view the very matter of notice; unless it is clear that notice would be of no use whatever, when, indeed, it would be unnecessary, or unless after reasonable diligence it cannot be given to or does not reach the parties to be charged. If by possibility the indorser might suffer detriment by failing to give him notice, such failing will discharge him.

Accordingly, notice of dishonor is not dispensed with by reason of the fact that the maker or acceptor was insolvent all

the time, and that the indorser was aware of the Insolvency of maker or ac- fact. For it does not follow, because a man is ceptor.

insolvent that he may not pay a particular debt, in whole or in part. A debtor is, within certain statutory restrictions, allowed to prefer his creditors; and even where his funds have passed from him, as into the hands of an assignee, friends may be ready to help him or his indorsers in the particular case.

1 Foster v. Julien, 24 N. Y. 28, 37; Michaud v. Lagarde, 4 Minn. 43. Compare Lehman v. Jones, 1 Watts & S. 126; Cases, 211.

? See Hale v. Burr, 12 Mass. 86, 88, where the court, speaking of demand upon the personal representative within the year of his exemption from suit, says : ‘Such a demand would therefore be merely a troublesome formality, without any use ; and notice to the indorser that (the promisor being dead) he will be looked to for payment, will in every respect be as advantageous to him as a previous demand upon the promisor.'

3 Oriental Bank v. Blake, 22 Pick. 206.

4 N. I. L. $ 119, as to the last clause of the text. As to delay see id. $ 118.

5 Foster v. Parker, 2 C. P. D. 18 ; Smith v. Miller, 52 N. Y. 545; Welch u. Taylor Manuf. Co., 82 Ill. 579.

. Barton v. Baker, 1 Serg. & R. 334.

The case

Even in the case of an express waiver of notice, the waiving heretofore suggested should be borne in mind where the waiver was after maturity; in such a case, the act, to be Knowledge valid, must have been done with knowledge that of facts. notice had not been given.'

There are one or two cases of excuse of notice peculiar in that they concern only the drawers of bills of exchange or of cheques. The drawer's contract has been explained in a pre- Cases peculiar ceding chapter, and it was there shown that one who to drawer of

bills or cheques. draws a bill without reasonable ground to believe that it will be honored by the drawee, or a cheque without having funds to meet it, is treated much as if, instead of baving drawn a bill, he had made a promissory note for the sum. Hence he is not entitled to notice in case of dishonor. may then be put, and commonly is put, in this way; that the act of drawing in such a case is deemed a fraud in the eye of the law, and notice of dishonor is accordingly unnecessary. This subject has, however, been fully dealt with in Chapter VII., and need not be further considered here. It should be observed, however, that in such case the law dispenses with notice to the drawer only; indorsers must still be notified, for they are no parties to the fraud, though it would be otherwise of an indorser who is the drawer of the bill.

To draw upon one's self, as was seen in Chapter VII., also dispenses with the requirement of notice, and perhaps of presentment; and so of cases in which the drawer draws upon a partnership of which he is a member, and the like cases referred to in Chapter VII. In these cases, too, the excuse extends only to the drawer; an indorser (not being drawer) is still entitled to notice.

The Statute, beginning with the case of the drawer, deals thus with the subject: Notice of dishonor need not be given to the drawer, (1) where the drawer and drawee are How the the same person; (2) where the drawee is a ficti- Statute deals

with the tious person or a person not having capacity to subject. contract; (3) where 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. It then declares that notice need not be given to an indorser, (1) where the drawee is a fictitious person or a person not having capacity to contract, and the indorser was aware of the fact at the time he indorsed; (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.? And where due notice of dishonor by nonacceptance has been given, notice of a subsequent dishonor by non-payment is unnecessary unless meantime the instrument has been accepted.

1 Ante, p. 169.

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i N. I. L. & 121; ante, pp. 71-75.

2 Id. $ 122; American Bank v. Junk, 94 Tenn. 624. So of accommodation maker. Carlton v. White, 99 Ga. 384.

• N. I. L. 8 123.

CHAPTER XII.

VENDOR'S CONTRACT.

THERE is one contract arising from an instrument of the law merchant which, paradoxically as the statement sounds, is substantially a contract, or the equivalent of a contract, Contract of of the common law; the contract, namely, of the common law. holder of a' negotiable instrument who for value transfers his title by delivery, that is, without indorsement, or by delivery with qualified indorsement as "without recourse.'

In its nature and incidents such a transaction is like a sale by the common law ; the contract entered into with the transfereo is the contract of a vendor at common law. The

Nature and special liability of an indorser, as already described, incidents as

in sale. is of course excluded.

The law is thus stated by the Statute, which conforms to the unwritten law: Every person who negotiates an instrument by delivery (only), or by a qualified indorsement, warrants (1) that the instrument is genuine, and in all respects what it purports to be; (2) that he has a good title to it;3 (3) that all prior parties had capacity to contract;4 (4) that he has no knowledge of any fact which would impair the validity of the instrument or render it valueless."

· Meyer v. Richards, 163 U. S. 385.

* Littaner v. Goldman, 72 N. Y. 506 ; Bell v. Dagg, 60 N. Y. 528 ; Cool. idge v. Brigham, 5 Met. 68 ; Clarke v. Patrick, 60 Minn. 269.

* Meriden Bank v. Gallaudet, 120 N. Y. 298. 4 Littauer ». Goldman, supra.

6 N. I. L. S 72. Provision (3) does not apply to persons negotiating pub. lic or corporate securities other than bills and notes. Id. ; Otis v. Cullum, 92 V. S. 448.

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