notice.

S1757. A notice of dishonor may be given in any Form of form' which describes the instrument with reasonable certainty, and substantially informs the party receiving it that the instrument has been dishonored.

The notice need not be in writing (Butt v. Hoge, 2
Hilt., 81; Cuyler v. Stevens, 4 Wend., 566; Williams
v. Bank of U. S., 2 Peters, 97; Housego v. Cowne, 2
M. & W., 348; Crosse v. Smith, 1 M. & Selw., 545),
and may be quite informal (see Miers v. Brown, 11
M. & W., 372; Maxwell v. Braine, 10 Jur. [N. S.],
777).

Although two or more instruments are in existence,

exactly corresponding to the description given, this
is no objection to the notice (Hodges v. Shuler, 22
N. Y., 114; Davenport v. Gilbert, 6 Bosw., 179);
unless the person to whom the notice is given is
thereby misled. No error, which cannot mislead,
will vitiate the notice (see Bromage v. Vaughan,
9 Q. B., 608; Mellersh v. Rippon, 7 Exch., 578;
Stockman v. Parr, 11 M. & W., 809). But a notice
not stating the maker's name is bad (Home Ins. Co.
v. Green, 19 N. Y., 518).

In Solarte v. Palmer, 2 Clark & Fin., 93; 1 Bing. N.
C., 194; aff'g S. C., 7 Bing., 530, the House of Lords
held a notice insufficient, which merely stated that a
bill (describing it) had been put into the hands of
the attorney giving the notice "with directions to
take legal measures for the recovery thereof, unless
immediately paid." The judges in that case declared
their opinion that a notice must allege a presentment
as well as non-payment, and must also state that the
party giving the notice looks to the party receiving
it for payment. Following this decision, it was held
that a notice was insufficient, if it merely stated that
the bill was "due and unpaid" (Dole v. Gold, 5 Barb.,
490; Furze v. Sharwood, 2 Q. B., 388; Phillips v.
Gould, 8 Carr. & P., 355), or "not paid," though
accompanied with a demand of payment (Strange v.
Price, 10 4d. & El., 125; Messenger v. Southey, 1
M. & G., 76). But the courts soon paused, and
began to qualify and limit these decisions, openly
expressing regret that they had ever been made
(Everard v. Watson, 1 El. & Bl., 801; Messenger v.
Southey, 1 M. & G., 76). And notices that a bill

Notice, how served.

was "dishonored" (Chard v. Fox, 14 Q. B., 200;
King v. Bickley, 2 Q. B., 419; Stocken v. Collins, 9
Carr. & P., 653), "returned with charges" (Grugeon
v. Smith, Ad. & El., 499), or unpaid, "amounting,
with expenses, to
so much (Everard v. Watson, 1
El. & Bl., 801), were held valid. So in this state,
"protested for non-payment," is sufficient in a notice
(Youngs v. Lee, 12 N. Y., 551; Cayuga Bank v.
Warden, 1 id., 413; Cook v. Litchfield, 9 id., 279).
In Bailey v. Porter, 14 M. & W., 44, all the ex-
pressions of opinion in Solarte v. Palmer, not abso-
lutely necessary to the decision, were disregarded,
and a notice of non-payment, simply, was held suffi-
cient. And this doctrine has been recently estab-
lished by the unanimous opinion of the judges in
the Exchequer Chamber (Paul v. Joel, 4 Hurist. &
N., 355; aff 'g S. C., 3 id., 455).

So, in opposition to the view expressed in Solarte v. Palmer, it is well settled that it is not necessary to add that the party giving the notice looks to the party receiving it for payment (Bank of U. S. v. Carneal, 2 Peters, 553; Butt v. Hoge, 2 Hilt., 81; King v. Bickley, 2 Q. B., 419; Cooke v. French, 10 Ad. & EL, 131; Cowles v. Harts, 3 Conn., 516; Shrieve v. Duckham, 1 Littell, 194; Bank of Cape Fear v. Sewell, 2 Hawks, 560; Warren v. Gilman, 17 Me. [5 Shepl.], 360).

1758. A notice of dishonor may be given:

1. By delivering it to the party to be charged, personally, at any place; or,

2. By delivering it to some person of discretion at the place of residence or business of such party, apparently acting for him ; or,

3. By properly folding the notice, directing it to the party to be charged, at his place of residence, according to the best information that the person giving the notice can obtain, depositing it in the post-office most conveniently accessible from the place where the presentment was made, and paying the postage thereon.3

1 Hyslop v. Jones, 3 McLean, 96.

2

Story on Notes, § 312; Mechanics Bkg. Asso. v. Place, 4 Duer, 212; see Hunt v. Maybee, 7 N. Y., 266; Housego v. Cowne, 2 M. & W., 348.

'Laws 1857, ch. 416, § 3. A notice wrongly addressed, when due diligence has not been used to procure the

correct address, is void (Randall v. Smith, 34 Barb.,
452; Libby v. Adams, 32 id., 542; see Lawrence v.
Miller, 16 N. Y., 235).

served after

death.

1759. In case of the death of a party to whom Notice, how notice of dishonor should otherwise be given, the indorser's notice must be given to one of his personal representatives; or if there are none, then to any member of his family who resided with him at his death; or if there is none, then it must be mailed to his last place of residence, as prescribed by subdivision 3 of the last section.2

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

'Modified from Story on Notes, § 310; in which it is said
that notice should be left at the domicile of the de-
ceased. This would often fail to reach his represen
tatives, more often than under the rule above given.

given in

S 1760. A notice of dishonor sent to a party after Notice his death, but in ignorance thereof, and in good ignorance faith, is valid.

S 1761. Notice of dishonor, when given by the holder of an instrument, or his agent, otherwise than by mail, must be given on the day of dishonor,1 or on the next business day thereafter."

1 Notice may be given immediately upon refusal of pay.
ment (Hine v. Allely, 4 B. & Ad., 624; Burbridge v.
Manners, 3 Camp., 193; Bussard v. Levering, 6
Wheat., 102).

2 This will suffice (Farmers' Bank of Bridgeport v. Vail,
21 N. Y., 485; Howard v. Ives, 1 Hill, 263; Cuy-
ler v. Stevens, 4 Wend., 566; Williams v. Smith, 2
B. & Ald., 496). But a later day will not do (Sewall
v. Russell, 3 Wend., 276).

S 1762. When notice of dishonor is given by mail, it must be deposited in the post-office in time for the first mail which closes after noon of the first business day succeeding the dishonor, and which leaves the place from which, for the place to which, the notice should be sent.

There is no doubt that the notice may be sent by mail on
the day after dishonor (Farmers' Bank of Bridgeport v•
Vail, 21 N. Y., 485); and it may be deemed to be set-
tled that notice may be sent by any mail leaving on

of death, valid.

Notice, how given by

agent.

Additional time for

notice by Indorser.

that day (Goodman v. Norton, 17 Me., 381; Howard v. Ives, 1 Hill, 263; Whitwell v. Johnson, 17 Mass., 449; see Housatonic Bank v. Laflin, 5 Cush., 546). But beyond this point there is great diversity of opinion, Thus it has been held on the one hand that notice must be sent by the second day's mail, though the last mail closes at 104 A. M. (U. S. v. Barker, 12 Wheat., 559), 9 A. M. (Lawson v. Farmers' Bank, 1 Ohio St., 206), and even earlier (Beckwith v. Smith, 22 Me., 125; see Stephenson v. Dickson, 24 Penn. St., 148), while on the other hand 5 A. M. (West v. Brown, 6 Ohio St., 542), 6 A. M. (Chick v. Pillsbury, 24 Me., 458), and even 9 A. M. (see Hawkes v. Salter, 4 Bing., 715; Burgess v. Vreeland, 4 N. J., 71), have been considered earlier hours than the holder was bound to send notice by. It is of more importance to have a definite rule than that it should be, abstractly considered, the most just which could be devised.

S1763. When the holder of a negotiable instrument, at the time of its dishonor, is a mere agent for the owner, it is sufficient for him to give notice to his principal in the same manner as to an indorser, and his principal may give notice to any other party to be charged, as if he were himself an indorser.1 And if an agent of the owner employs a sub-agent, it is sufficient for each successive agent or sub-agent to give notice in like manner to his own principal.2

1

Story on Notes, § 326; West River Bank v. Taylor, 7
Bosw., 466; Howard v. Ives, 1 Hill, 263; Ogden v.
Dobbin, Hall, 112; Mead v. Engs, 5 Cow., 303;
Farmers' Bank of Bridgeport v. Vail, 21 N. Y., 485;
Bray v. Hadwen, 5 M. & Selw., 68; Firth v. Thrush,
8 B. & C., 387.

Clode v. Bayley, 12 M. & W., 51.

S1764. Every party to a negotiable instrument, receiving notice of its dishonor, has the like time thereafter to give similar notice to prior parties, as the original holder had after its dishonor.' But this additional time is available only to the particular party entitled thereto." If sent by mail, the notice must be deposited in the post-office most conveniently accessible from the place where the party giving it resides or receives notice.

'Story on Notes, § 331; 6 East, 3; 1 Hill, 263; 21 N. Y., 485. 213 C. B., 249; see 15 M. & W., 231.

notice of

1765. A notice of the dishonor of a negotiable Effect of instrument, if valid in favor of the party giving it, dishonor. inures to the benefit of all other parties thereto, whose right to give the like notice has not then been lost.

Harrison v. Ruscoe, 15 M. & W., 231; Mead v. Engs, 5

Cow., 303; Stafford v. Yates, 18 Johns., 327; Lysaght
v. Bryant, 9 C. B., 46.

ARTICLE VI.

EXCUSE OF PRESENTMENT AND NOTICE.

SECTION 1766. Notice of dishonor, when excused.

1767, 1768. Presentment and notice, when excused.
1769. Delay, when excused.

1770. Waiver of presentment and notice.

1771. Waiver of protest.

1. When neither the place of payment, if any, designated in the instrument, nor the place of residence or business of the principal debtor can, with reasonable diligence, be ascertained by the holder; or,

2. When no person to whom presentment may properly be made can, with reasonable diligence, be found by the holder; or,

3. When the instrument designates no place of pay-
ment, but purports to be signed by the principal
debtor within this state, and he resided therein at the
time of signing, but has removed therefrom.

Foster v. Julien, 24 N. Y., 28; see Spies v. Gil-
more, 1 id., 321.

S1766. Notice of dishonor is excused:

dishonor, excused.

1. When the party by whom it should be given Notice of cannot, with reasonable diligence, ascertain either when the place of residence or business of the party to be charged; or,

2. When there is no post-office communication between the town of the party by whom the notice should be given, and the town in which the place of