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SECTION 39. NOTICE OF DISHONOR. If the holder of the negotiable paper has presented the same for payment, and it has been dishonored, the duty is then on the holder to give notice of the dishonor to those who are secondarily liable on the paper, that is to the drawer and indorser of a bill and the indorsers of a note. A failure to give this notice will discharge the drawer or the indorser as the case may be. Persons secondarily liable on the paper are entitled to this notice at once, in order that they may take steps towards protecting their own interests in the premises. 18 But the principal reason for the rule is the condition that the rule of the Law Merchant itself imposed, namely, a compliance with the conditions precedent of presentment and notice in order to bind the indorser or the person whose liability is secondary.10
The holder's failure to give this notice of the non-payment of the bill or note fails then to perform the condition precedent to his right to recover; he cannot, therefore, bring suit against those who become parties to the paper, relying on the right of performance of these conditions precedent. It is, therefore, the rule that the drawer or indorser who has not been sent the notice of dishonor may not only claim a discharge on his liability on the note, but also on the liability upon the consideration of the transfer of the paper.20
SECTION 40. How THE NOTICE SHOULD BE GIVEN.
The notice may be given either orally or in writing and should be given to any person upon whom the holder wishes to fix a liability; he may, therefore, notice 18 Stewart vs. Millard, 7 Lans., 373. 90 Woodcock vs. Bennett, 1 Cow., 10 Musson vs. Lake, 4 How. (U. S.),
all or anyone of the indorsers. The notice must be dispatched within twenty-four hours after the dishonor of the paper where the parties reside in different places. A personal notice must be given either in writing or verbally where the parties reside in the same place."
SECTION 41. WHAT THE NOTICE SHOULD CONTAIN.
Where the notice is oral or written, it should be sufficient to apprise the person to be charged of the default in payment of the particular paper in question. Where the notice is given verbally less particularity of identification is required, because the person upon whom the liability is to be fixed is at hand to put such questions touching the paper in question as he saw fit. But where the notice is written, the paper
in question should be sufficiently described to identify it. It should state that the paper was presented for payment; that a demand of payment was made; that it was dishonored; and the notice must state further that the holder looks to the person notified for payment of the paper. A true copy of the note in question may properly be attached to the notice, although this is not necessary to the validity of the notice. No particular form of notice is required. 23
SECTION 42. PROTEST. A foreign bill of exchange that has been dishonored must be regularly protested as a preliminary to the sending out of the notice of dishonor; therefore its presentment must be made by one who is a notary public, as the certificate of the protest of the notary is recognized as satisfactory proof of the statements that Merritt vs. Woodbury, 14 Iowa, • Cook vs. Litchfield, 9 N. Y., 279. the certificate should properly contain, and the act of the notary in so acting is universally recognized.* Where a foreign note has been indorsed, the protest of the note by a notary is necessary, according to the weight of authority.25 An inland bill or note, unindorsed, need not be protested by a notary, but the statutes, however, permit the notary public to protest the inland bill and note, after the same fashion as in writing up his certificate of protest on a foreign bill. It is a common custom, therefore, of banks and other handlers of negotiable paper to employ a notary public as their agent to act in the particular of presenting negotiable paper and where it is dishonored of protesting and sending out the notice of dishonor to persons secondarily liable. The employment of a notary in such a case, while sanctioned, is not made necessary; it is done as a matter of convenience. Nor is it necessary that the notice of dishonor be sent out by the notary, although this is customarily a part of the duties of his office by the private arrangement of his employers.26 The notary's certificate contains his declaration in formal language, usually, and under a written copy of the note or bill in question stating that he has made presentment and demand of payment, and that the payment has been refused, together with the reasons for the refusal, time, and the fact that he therefore protests the paper. The notary then attaches his seal of office to the certificate of protest and signs the same. The main purpose served by the certificate is to afford to the holder the legal testimony on the facts properly contained therein, in an action on the paper against those secondarily liable.*
* Rasher vs. Kieran, 4 Camp., 87.
Halliday McDougall, 20
Wend., 80. » Ticonic Bank vs. Stockpole, 41
» Bailey vs. Dozier, 6 How., 2.
SECTION 43. EXCUSES FOR FAILURE TO PRESENT OR
TO GIVE NOTICE. While it is a strict rule of law that a note or bill must be presented for payment on the day of maturity, and while the law will also demand that the rules of notice or dishonor and protest be rigidly enforced, yet where impossibilities arise which prevent the holder from making the presentment and protest and sending out notice of dishonor, the law will excuse the holder from performing these obligations while the impossibility exists which prevent the accomplishment of these duties; and notwithstanding the presentment and protest is not made, and the notice is not given, the law will in such cases hold the drawer and the indorsers liable.
Among the most usual things that may occur that would act as an obstacle to presentment and protest may be mentioned the breaking out of hostilities between the country of the holder and the country of the person upon whom presentment, etc., is to be made; as long as the war continues, or until communication between the affected countries is resumed, the war will operate as an excuse to delay presentment and protest and notice.28
So the happening of any event that would cause a complete cessation of business between the place of business of the holder and the place of business of the person upon whom presentment is to be made or notice given would excuse the holder pending the continuation of such happening. It is necessary, however, that business be completely suspended by the disturbance and that the suspension be necessary on account of the happening. Disturbances of this sort " Hubbard vs. Matbewe, 64 N. Y., 43.
include conflagrations, epidemics, riots, floods, and a general pestilence.
It is the further rule that with the cessation of the calamity, or the removal of the bar to presentment, etc., that it is then the duty of the holder to make presentment and protest, and send out notice of dishonor, within a reasonable time after the removal of the cause of the delay.29
If an indorser indorses a void note, he is liable on his implied guaranty and cannot escape liability for lack of presentment, protest and notice, as he cannot expect that the note will be honored under such circumstances.30 If the address of the maker of a note is unknown and cannot be found out by the exercise of due diligence, or the same is true as to the acceptor of a bill, presentment will be excused and the paper may be protested and notice sent out to the indorsers or the drawer.
Presentment is likewise excused by the notorious insolvency of the maker, or acceptor, or if the maker or acceptor has absconded, no presentment need be made.
The extreme illness, or the death of holder on the eve of presentment, will operate to furnish a temporary excuse for failure to make presentment. But it must be remembered that this last excuse is only to be temporarily claimed, and that within a reasonable time the representative of the holder should act in his stead.31
Presentment, protest, and notice may be waived; but the waiver must be made by the indorser or the person secondarily liable on the paper to the holder of
a White vs. Stoddard, 11 Gray, 258.
* Bond vs. Moore, 93 U, S., 593.