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is dead, does not relieve him from the duty of giving notice of dishonor to the indorser. Reed v. Spear, 107 App. Div. (N. Y.) 144.

case.

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(b) Hobbs v. Straine, 149 Mass. 212; Staylor v. Ball, 24 Md. 183; Reed v. Spear, 107 App. Div. (N. Y.) 144; Fonseca v. Hartman, 84 N. Y. Supp. 131; Siegel v. Dubinsky, 56 Misc. (N. Y.) 681. Reasonable diligence is all that is required. The law does not exact every possible exertion which might have been made to effect notice of the dishonor of the paper. Bank of Port Jefferson v. Darling, 91 Hun, 236. But, as said by Lord Ellenborough, the holder cannot allow himself to remain "in a state of passive and contented ignorance." Bateman v. Joseph, 2 Campb. 461. What is reasonable diligence will depend upon the circumstances of each What would be sufficient in one case might fall short in another. Howland v. Adrian, 29 N. J. Law, 41. And any mode of inquiry will be sufficient which under the circumstances of the case evinces reasonable diligence. Hartford Bank v. Stedman, 3 Conn. 494. But bare reliance upon a directory is not sufficient. Bacon v. Hanna, 137 N. Y. 379, 382. In the case last cited, the court said: Merely looking into a directory is not enough. The sources of error in that process are too many and too great. Such books are accurate enough in a general way, and convenient as an aid or assistance, but they are private ventures, created by irresponsible parties, and depending upon information gathered as cheaply as possible and by unknown agents. Their help may be invoked, but, as was said in Lawrence v. Miller, 16 N. Y. 231, their error may excuse the notary, but will not charge the defendant. Merely consulting them should not be deemed 'the best information obtained by diligent inquiry.' Greenwich Bank v. DeGroot, 7 Hun, 210; Baer v. Leppert, 12 Hun, 516." If the holder is ignorant of the address he should apply to the other parties to the instrument for information. University Press v. Williams, 48 App. Div. (N. Y.) 190. When a notary is employed, it is the duty of the holder to inform him of the indorser's place of residence; and if this be omitted, the notary ought to apply to all the parties to the instrument for information, and especially to the holder himself. Hill v. Farrell, 3 Greenleaf, 233; Haly v. Brown, 5 Pa. St. 178, 182; Tate v. Sullivan, 30 Md. 464; Staylor v. Ball & Williams, 24 Md. 183. But as the duty to give notice, and therefore the duty of due diligence to discover the residence of the indorser, arises subsequently to the dishonor of

the note, it is not an element of due diligence that the owner should previously have communicated his knowledge of the indorser's residence to the holder for collection. Bartlett v. Isbell, 31 Conn. 297. Where it does not appear that the residence of the indorser has been changed previously to the time of sending the notice, it will be presumed that there has been no change of residence up to that time. Mohlman Co. v. McKane, 60 App. Div. 546 (a case arising under the statute). Where the facts are undisputed the question of due diligence in seeking to give notice of dishonor is for the court. Haly v. Brown, 5 Pa. St. 178.

§ 184. 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 his default, misconduct or negligence. When the cause of delay ceases to operate, notice must be given with reasonable diligence (a).

(a) In Martin v. Ingersoll, 8 Pick. 1, the delay was caused by the fact that during the Christmas holidays vessels were not allowed to clear from Havana. Held, that during the continuance of the holidays it was not necessary to write a notice of the dishonor of a bill.

§ 185. 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:

I. Where the drawer and drawee are the same person

(a);

2. Where the drawee is a fictitious person or a person not having capacity to 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 (b); 5. Where the drawer has countermanded payment.

(a) Roach v. Ostler, 1 Man. & Ry. 120; Planters' Bank v. Evans, 36 Tex. 592; Chicago, etc., R. R. Co. v. West, 37 Ind. 211.

When the drawer and the drawee are the same in contemplation of law, the rule applicable to such draft is, that in legal operation it is regarded as a promissory note, payable on demand, and the maker thereof is not entitled to notice. Bailey v. Southwestern R. R. Bank, 11 Fla. 266. Notice is not required to render a firm liable where all the members of the firm are members of the house which drew the bill. West Branch Bank v. Fulner, 3 Pa. St. 399.

(b) Life Insurance Company v. Pendleton, 112 U. S. 708; Wollenweber v. Ketterlinn, 17 Pa. St. 389. Although the drawer has no funds in the hands of the drawee, yet if he has a right to expect to have funds in the hands of the drawee to meet the bill, or if he has a right to expect the bill to be accepted by the drawee in consequence of an agreement or an arrangement with him, or if upon taking up the bill he would be entitled to sue the drawee or any other party to the bill, then in every such case he is entitled to strict notice of dishonor. Pitts v. Jones, 9 Fla. 519.

§ 186. 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 not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the instrument (a).

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

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

(a) See note to section 28.

(b) In re Swift, 106 Fed. Rep. 65 (a case arising under the statute).

(c) French v. Bank of Columbia, 4 Cranch, 141; Ross v. Bedell, 5 Duer, 462; Blenderman v. Price, 50 N. J. L. 296; Torrey v. Trost, 40 Me. 74. Where one, as indorser, procures the note of another to be discounted by a bank for his credit, and at the time the discount is effected makes a distinct promise to the bank to pay the note at maturity, his liability is absolute, not condi

tional, and protest and notice of non-payment are unnecessary. Sieger v. Second National Bank, 132 Pa. St. 307.

§ 187. 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 (a).

(a) De la Torre v. Barclay, 1 Stark, 308; Campbell v. French, 6 T. R. 200.

§ 188. Effect of omission to give notice of non-acceptance. An omission to give notice of dishonor by nonacceptance does not prejudice the rights of a holder in due course subsequent to the omission.

§ 189. 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 nonpayment, as the case may be; but protest is not required, except in the case of foreign bills of exchange (a).

(a) Bay v. Church, 15 Conn. 129; Legg v. Vinal, 165 Mass. 555; Tate v. Sullivan, 30 Md. 464; Weems v. Farmers' Bank, 15 Md. 231; Ricketts v. Pendleton, 14 Md. 320; Sumner v. Kimball, 2 Wis. 524; Stephenson v. Dickson, 24 Pa. St. 148. Under this section the drawer of a foreign bill is discharged unless the bill be protested. Amsinck v. Rogers, 189 N. Y. 252; S. C., 103 App. Div. 428. While protest is not necessary, except in case of foreign bills, it is very convenient in all cases, because it affords the easiest and most certain method of proving the fact of dishonor and the notice to the indorsers. Under the statutes of nearly all, if not all of the States, the certificate of the notary making the protest is prima facie evidence of these facts. As to what are foreign bills, see section 213. For other provisions relative to protest, see sections 260-268.

ARTICLE IX.

DISCHARGE OF NEGOTIABLE INSTRUMENTS.

Section 200. Instrument; how discharged.

201. When person secondarily liable on, discharged. 202. Right of party who discharges instrument. 203. Renunciation by holder.

204. Cancellation; unintentional; burden of proof. 205. Alteration of instrument; effect of.

206. What constitutes a material alteration.

§ 200. Instrument; how discharged.*-A negotiable instrument is discharged:

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

2. By payment in due course by the party accommodated, where the instrument is made or accepted for accommodation;

3. By the intentional cancellation thereof by the holder (c);

4. By any other act which will discharge a simple contract for the payment of money (d);

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

(a) The possession of a bill of exchange by the acceptor after it has been in circulation is prima facie evidence that it has been paid by him. Baring v. Clark, 19 Pick. 220. So the possession of a promissory note by the maker. First Nat. Bank v. Harris, 7 Wash. 139; Perez v. Bank of Key West, 36 Fla. 467. But see

*Through an error in engrossing the words in the headnote have been transposed. It was intended to read. "How instrument discharged." The error was not corrected by the Act of 1898.

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