not only inure to the benefit of the indorser who sent it, but it would inure to the benefit of the holder. There is one method of sending notice to earlier indorsers which was upheld in a case decided in Massachusetts some years ago, and perhaps the same method is in use now; that is, by mailing notices to all the indorsers under one cover to the last indorser, leaving it to him to forward the notices to the earlier indorsers. Of course, if he does so promptly there is no doubt that such notices are timely (Section 107) and inure to the benefit of the holder, but it was further held in the case in question to be a proper method of notification, charging all the indorsers, even though the last indorser did not forward the notices to the earlier indorsers. 59

It may be doubted if the Massachusetts decision would generally be accepted.60 It is obvious that if the risk of the notices being forwarded is on the original sender, the method in question is a very unsafe one to adopt in charging parties secondarily liable.

§ 1185. Address to which notice must be sent.

Section 108. [WHERE NOTICE MUST BE SENT.] Where a party has added an address to his signature, notice of dishonor must be sent to that address; 61 but if he has not given such address, then the notice must be sent as follows:

(1) Either to the post-office nearest to his place of residence, or to the post-office where he is accustomed to receive his letters; or 62

722; Union Bank v. Deshel, 139 N. Y. App. D. 217, 123 N. Y. S. 585. Cf. First Nat. Bank v. Delone, 254 Pa. 409, 98 Atl. 1042.

59 Wamesit Bank v. Buttrick, 11 Gray, 387.

60 See Vaughan v. Potter, 131 Ill. App. 334; Van Brunt v. Vaughn, 47 Ia. 145, 29 Am. Rep. 468; Wood v. Callaghan, 61 Mich. 402, 28 N. W. 162, 1 Am. St. Rep. 597; Stix v. Mathews, 63 Mo. 371, 375; Fuller Buggy Co. v. Waldron, 112 N. Y. App. D. 814, 99 N. Y. S. 561; Lawson v. Farmers' Bank, 1 Ohio St. 206.

61 See Lankofsky v. Raymond, 217 Mass. 98, 104 N. E. 489. Notice sent to a place which the indorser said, at the time when the note was made, was his address, is sufficient to charge him. Archuleta v. Johnston, 53 Col. 393, 127 Pac. 134.

62 Notice sent addressed to an indorser at "New York City" without more was held sufficient though his exact address could have been found in the telephone directory. McGrath v. Fancolini, 92 N. Y. Misc. 359, 156 N. Y. S. 981.

(2) If he live in one place, and have his place of business in another, notice may be sent to either place; or

(3) If he is sojourning in another place, notice may be sent to the place where he is so sojourning.

But where the notice is actually received by the party within the time specified in this act, it will be sufficient, though not sent in accordance with the requirements of this section.

§ 1186. Effect of waiver.

Section 109. [WAIVER OF NOTICE.] Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied.63

BY

Section 110. [WHOM AFFECTED WAIVER.] Where the waiver is embodied in the instrument itself, it is binding upon all parties; but where it is written above the signature of an indorser, it binds him only.64

Section 111. [WAIVER OF PROTEST.] A waiver of protest, whether in the case of a foreign bill of exchange or other negotiable instrument, is deemed to be a waiver not only of a formal protest, but also of presentment and notice of dishonor.

"The liability of an indorser is conditional, the conditions being first, that at the maturity of the note there shall be a demand upon the maker for payment, and second, that if the note be not then paid due notice thereof shall be given to the indorser. And these two conditions are distinct and

63 See supra, §§ 157, 689. Recent illustrations of waiver implied from previous dealings are found in Simonoff v. Granite City Nat. Bank, 279 Ill. 248, 116 N. E. 636; Linthicum v. Bagby, 131 Md. 644, 102 Atl. 997. Whether waiver of presentment involves waiver of notice is disputed. See this section ad fin.

64 Owensboro Sav. Bank v. Haynes, 143 Ky. 534, 136 S. W. 1004; Atkins v. Dixie Fair Co., 135 La. 622, 65 So.

762. Where there was a printed waiver on the back of the form of a note, several indorsers who signed on the back of the instrument before delivery were each held bound by the waiver. Central Nat. Bank v. Sciotoville &c. Co., 79 W. Va. 782, 91 S. E. 808. And in Hurlbut v. Quigley (Cal.), 180 Pac. 613, the words "I hereby waive presentment &c." written above the names of several indorsers was held a joint and several promise by each.

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."

§ 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 PROTEST 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.