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must be made to his personal representative, if such there be, and if, with the exercise of reasonable diligence, he can be found.
SECTION 1678-7. Where the persons prima- Partners. rily liable on the instrument are liable as partners and no place of payment is specified, presentment for payment may be made to any one of them, even though there has been a dissolution of the firm.
SECTION 1678 S. Where there are several Joint debtors. persons, not partners, primarily liable on the instrument, and no place of payment is specified, presentment must be made to them all. SECTION 1678-9. Presentment for payment In order to
charge drawer. is not required in order to charge the drawer where he has no right to expect or require that the drawee or acceptor will pay the instrument.
SECTION 1678-10. Presentment for payment In order to is not required in order to charge an indorser durser. where the instrument was made or accepted for bis accommodation, and he has no reason to expect that the instrument will be paid if presented.
SECTION 1678-11. Delay in making present- Delay, when ment for payment is excused when the delay is excused. caused by circumstances beyond the control of the holder, and not imputable to his default, nisconduct or negligence. When the cause of lelay ceases to operate, presentment must be nade with reasonable diligence.
Note-As, by delay in mail. 6 Wis., 422. Sickness of the older is no excuse, unless it was not only sudden, but so severe as lot only to prevent him from making presentment, and giving notice uimself, but from employing another to do so ; and it must be hown that proper steps were taken as soon as the disability was emoved.
Wilson v. Senier, 14 Wis., 411. Where such sickness as fatal, yet a delay of the executrix to present the note for sevral month discharged the indorser. Ib.
Insolvency of maker is no excuse, although known to the in Orser when the indorsement was made. Ibid. Taking security by De indorser is no excuse. Nothing but a general assignment and ransfer to the indorser of all the maker's effects, or the receipt by y bim of money or property to satisfy the note, will excuse such Pesentment and notice. Ibid.
When dispensed with.
SECTION 1678-12. Presentment for payment is dispensed with:
1. Where after the exercise of reasonable diligence presentment as required by this chapter cannot be made.
2. Where the drawee is a fictitious person;
3. By waiver of presentment express or implied.
NOTE-INSOLVENCY. Mere insolvency does not excuse present. ment. Reinke v. Wright, 93 Wis., 368.
WAIVER. A note was secured by a chattel mortgage running to the payee but given to protect Indorsers. After maturity of the note a part of the mortgaged property was sold, with the consent and approval of an indorser, and the amount realized was indorsed on the note. Tield, not a payment by said indorser such as would constitute a waiver of presentment of the note to the maker and a demand of payment. Reinke v. Wright, 93 Wis., 368.
By non-pay. ment.
Right of reconrse of holder.
Without grace. Maturity.
SECTION 1678-13. The instrument is dishonored by non-payment when:
1. It is duly presented for payment and par: ment is refused or cannot be obtained; or,
2. Presentment is excused and the instrument is overdue and unpaid.
SECTION 1678-14. Subject to the provisious of this act, when the instrument is dishonored by non-payment, an immediate right of recourse to all parties secondarily liable thereon, accrues to the holder.
SECTION 1678-15. Every negotiable instrument is payable at the time fixed therein without grace. When the day of maturity falls upon a Sunday, or a holiday, the instrument is payable on the next succeeding business day.
SECTION 1678-16. Where the instrument is payable at a fixed period after date, after sight or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run, and by including the date of the payment.
SECTION 1678-17. Where the instrument is made payable at a bank it is equivelant to an order to the bank to pay the same for the account of the principal debtor thereon.
Time of pay. ment.
At a bank.
SECTION 1678-18. Payment is made in due Payment in course when it is made at or after the maturity of the instrument to the holder thereof in good faith and without notice that his title is defective.
NOTICE OF DISHONOR.
SECTION 1678-19. Except as herein other- Notice, how
given. wise provided, when a negotiabe instrument has been dishonored by non-acceptance or non-payment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged.
NOTE-Where an instrument is indorsed (or accepted) after maturity, the holder must in order to charge persons secondarily liable make a demand and give notice of non-payment within a reasonable time thereafter. Corwith v. Morrison, 1 Pin., 489. What is due diligence when the facts are not disputed is for the
Parkinson v. MeKim, 1 P., 214. In an action by the Indorsee against the Indorser of a promissory note, which was not presented to the maker at maturity, the burden is upon the plaintiff to show that the maker had then removed from the state, or that due diligence was used to find him or ascertain his place of residence. Eaton v. McMahon, 42 Wis., 481.
SECTION 1678–20. The notice may be given who may give. by or on behalf of the holder, or by or on behalf of any party to the instrument who might be compelled to pay it to the holder, and who, upon taking it up would have a right to reimbursement from the party to whom the notice is given.
Note-Linn v. llorton, 17 Wis.,
SECTION 1678–21. Notice of dishonor may be by agent. given by an agent either in his own name or in the name of any party entitled to give notice, whether that party be his principal or not.
SECTION 1678–22. Where notice is given by Subsequent or on behalf of the holder, it enures for the benefit of all subsequent holders and all prior parties who have a right of recourse against the party to whom it is given.
SECTION 1678-23. Where notice is given by Notice on beor on behalf of a party entitled to give notice, it balfofontitled
enures for the benefit of the holder and all parties subsequent to the party to whom notice is given.
NOTE- The holder of a bill or note may rely, if he choose, on the responsibility of his immediate indorser, and need not give notice of protest for non-acceptance or non-payment to any previous party Linn v. Horton, 17 Wis., 157.
In such case, if notice be properly given in due time by the lat ter indorser to previous parties, it will enure to the benefit of the holder, and he may recover from any of them. Ibid.
It is no objection to such notice that it was not received so soon by an earlier indorser as it would have been if transmitted directly by the holder or notary, provided it was sent with reasonable diligence by each indorser as he received it. Ibid.
The same degree of diligence must be exercised by the indorser in forwarding notice, as is required of the holder. Ordinary dili gence must be used in both cases. Ibid.
The indorser is not bound to forward notice to a previous party on the same day on which he receives it, but may wait until the next day. Ibid.
For the purpose of receiving and transmitting notice, those who hold negotiable paper at the time of protest, and those who indorse as mere agents to collect are regarded as real parties to the paper; the former as holders in fact, and the latter as actual indorsers for value. Ibid.
On the day a note fell due at Janesville, in this state, notice of protest addressed severally to H (who had indorsed for the makers and resided near Janesville) to the payees and to their bankers in New York (who had respectively indorsed the note for collection) were sent by mail, postpaid, to the latter, who received them and on the same day delivered to the payees the notice for them and H; and on the same day the payees forwarded the notice for H, by mail, postpaid, directed to him at his proper post office at Janesville ; but it was never received by him. lleld, in an action by the payees, that I was chargeable with the notice. Ibid.
In hands of an SECTION 1678-24. Where the instrument has agent.
been dishonored in the hands of an agent, he may either himself give notice to the parties liable thereon, or he may give notice to his principal. If he give notice to his principal, he must do so within the same time as if he were the holder, and the principal upon the receipt of such notice has himself the same time for giving notice as if the agent had been an independent
holder. Character of
SECTION 1678-25. The notice may be in writ. ing or merely oral and may be given in any terms which sufficiently identify the instrument, and indicate that it has been dishonored by nonacceptance or non-payment. It may in all cases be given by delivering it personally or through the mails.
1899 c 356 g
1899 c 356 3
SECTION 1678-26. A written notice need not written
notice. be signed and an insufficient written notice may be supplemented and validated by verbal communication. A misdescription of the instrument does not vitiate the notice unless the party to whom the notice.is given is in fact misled thereby.
NorE-BY MAIL. Is valid. Brewster v. Arnold, 1 Wis., 229. But not where the indorser lives only two miles from the residence of the notary protesting it. Smith v. Ilill, 6 Wis., 133.
See Glicksman v. Earley, 78 Wis., 223.
Where a note was payable at a bank in the city of Madison and an indorser resided in the town of Westport, six miles from Madison and from the residence of the notary who protested the note, but usually received his mail matter at the post office at Madison ; Held, that a proper notice deposited in the post office at Madison, addressed to such indorser at Madison, was sufficient to charge him, although there was a post office in the town of Westport, nearer to his residence. Westfall v. Farwell, 13 Wis., 563. Actual transmission by mail from the place to another is not essential, in all cases,
a good service through the post oflice. Ibid. A statute requiring personal service
to authorize a service by leaving a notice at the place of residence or business. Ibid.
SECTION 1678–27. Notice of dishonor may be To whom given either to the party himself or to his agent in that behalf.
SECTION 1678–28. When any party is dead, and his death is known to the party giving notice, the notice must be given to a personal representative, if there be one, and if with reasonable diligence he can be found. If there be no personal representative, notice may be sent to the last residence or last place of business of the deceased.
SECTION 1678-29. Where the parties to be Partners. notified are partners, notice to any one partner is notice to the firm even though there has been a dissolution.
SECTION 1678-30. Notice to joint parties who Joint parties. are not partners must be given to each of them, unless one of them has authority to receive such notice for the others.
SECTION 1678–31. Where a party has been Bankrupt. adjudged a bankrupt or an insolvent, or has made an assignment for the benefit of creditors,