NOTE.-Story on Bills, Sec. 228; Walker vs. Bank of State of N. Y., 9 N. Y., p. 582; see Minturn vs. 3142. Notice of the dishonor of a negotiable Notice, by instrument may be given: 1. By a holder thereof; or, 2. By any party to the instrument who might be compelled to pay it to the holder, and who would, upon taking it up, have a right to reimbursement from the party to whom the notice is given. NOTE. It is, of course, a general principle that Subd. 1.-Notice by a mere stranger is of no effect.- Subd. 2.-Chapman vs. Keane, 3 Ad. & El., p. 193; whom given. notice. 3143. 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. NOTE." Notice of dishonor may be given in any form." It need not be in writing (Butt vs. Hoge, 2 Hilt., 81; Cuyler vs. Stevens, 4 Wend., p. 566; Williams vs. Bank U. S., 2 Peters, p. 97; Housego vs. Cowne, 2 M. & W., p. 348; Crosse vs. Smith, 1 M. & Selw., p. 545), and may be quite informal.-See Miers vs. Brown, 11 M. & W., p. 372; Maxwell vs. Braine, 10 Jur. (N. S.), p. 777. "Which describes the instrument with reasonable certainty." Although two or more instruments are in existence, exactly corresponding to the description given, this is no objection to the notice (Hodges vs. Shuler, 22 N. Y., p. 114; Davenport vs. Gilbert, 6 Bosw., p. 179); unless the person to whom the notice is given is thereby misled. No error, which cannot mislead, will vitiate the notice.-See Bromage vs. Vaughan, 9 Q. B., p. 608; Mellersh vs. Rippon, 7 Exch., p. 578; Stockman vs. Parr, 11 M. & W., p. 809. But a notice not stating the maker's name is bad.Home Ins. Co. vs. Green, 19 N. Y., p. 518. In Solarte vs. Palmer, 2 Clark & Fin., p. 93; 1 Bing. N. C., p. 194; affirming S. C., 7 Bing., p. 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 vs. Gold, 5 Barb., p. 490; Furze vs. Sharwood, 2 Q. B., p. 388; Phillips vs. Gould, 8 Carr. & P., p. 355), or "not paid," though accompanied with a demand of payment.-Strange vs. Price, 10 Ad. & El., p. 125; Messenger vs. Southey, 1 M. & G., p. 76. But the Courts soon paused, and began to qualify and limit these decisions, openly expressing regret that they had ever been made.Everard vs. Watson, 1 El. & Bl., p. 801; Messenger vs. Southey, 1 M. & G., p. 76. And notices that a bill was "dishonored" (Chard vs. Fox, 14 Q. B., p. 200; King vs. Bickley, 2 Q. B., p. 419; Stocken vs. Collins, 9 Carr. & P., p. 653), "returned with charges" (Grugeon vs. Smith, 6 Ad. & El., p. 499), or unpaid, "amounting, with expenses, to" so much (Everard vs. Watson, 1 El. & Bl., p. 801), were held valid. So, also, in New York, "protested for non-payment" is sufficient in a notice.-Youngs vs. Lee, 12 N. Y., p. 551; Cayuga Bank vs. Warden, 1 id., p. 413; Cook vs. Litchfield, 9 id., p. 279. In Bayley vs. Porter, 14 M. & W., p. 44, all the expressions of opinion in Solarte vs. Palmer, not absolutely necessary to the decision, were disregarded, and a notice of non-payment, simply, was held sufficient. And this doctrine has been recently established by the unanimous opinion of the Judges in 3144. A notice of dishonor may be given: 1. By delivering it to the party to be charged, per- Notice, sonally, 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. NOTE.-Subd. 1.-Hyslop vs. Jones, 3 McLean, p. 96; see Vance vs. Collins, 6 Cal., p. 435; but see Subd. Subd. 2.-Story on Notes, Sec. 312; Mechanics Bkg. 348. Subd. 3.-A notice wrongly addressed, when due diligence has not been used to procure the correct address, is void. Randall vs. Smith, 34 Barb., p. 452; Libby vs. Adams, 32 id., p. 542; see Lawrence vs. Miller, 16 N. Y., p. 235. But where due diligence in obtaining information has been used, the indorser will be charged notwithstanding notice was actually sent to wrong place how served. Notice, how served after indorser's death. Notice given in ignorance of death, valid. Notice, when to be given. and never reached him.-Garver vs. Downie, 33 Cal., p. 176. Compare this subdivision with Vance vs. Collins, 6 Cal., p. 435. 3145. In case of the death of a party to whom notice of dishonor should otherwise be given, the 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. NOTE.-Modified from Story on Notes, Sec. 310, in which it is said that notice should be left at the domicile of the deceased. This would often fail to reach his representatives; more often than under the rule above given. As to giving notice to one of decedent's personal representatives, see Oriental Bank vs. Blake, 22 Pick., p. 206. 3146. A notice of dishonor sent to a party after his death, but in ignorance thereof, and in good faith, is valid. 3147. 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, or on the next business day thereafter. NOTE. "Notice must be given on the day of dishonor." Notice may be given immediately upon refusal of payment.-Hine vs. Allely, 4 B. & Ad., p. 624; Burbridge vs. Manners, 3 Camp., p. 193; Bussard vs. Levering, 6 Wheat., p. 102; McFarland vs. Pico, 8 Cal., p. 626. "Or on the next business day thereafter." This will suffice.-Farmers' Bank of Bridgeport vs. Vail, 21 N. Y., p. 485; Howard vs. Ives, 1 Hill, p. 263; Cuyler vs. Stevens, 4 Wend., p. 566; Willliams vs. Smith, 2 B. & Ald., p. 496. But a later day will not do.-Sewall vs. Russell, 3 Wend., p. 276; see McFarland vs. Pico, 8 Cal., p. 626; Keyes vs. Fenstermaker, 24 Cal., p. 329. Where a note fell due on the fourth of July (not then a non-judicial day), it was held that notice of nonpayment on the third was premature and ineffectual to charge the indorser.-Tooth aker vs. Cornwall, 3 Cal., p. 144. Where much time 3148. 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 where the instrument was dishonored, for the place to which the notice should be sent. NOTE.-There is no doubt that the notice may be sent by mail on the day after dishonor (Farmers' Bank of Bridgeport vs. Vail, 21 N. Y., p. 485); and it may be deemed to be settled that notice may be sent by any mail leaving on that day.-Goodman vs. Norton, 17 Me., p. 381; Howard vs. Ives, 1 Hill, p. 263; Whitwell vs. Johnson, 17 Mass., p. 449; see Housatonic Bank vs. Laflin, 5 Cush., p. 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 101⁄2 A. M. (U. S. vs. Barker, 12 Wheat., p. 559), 9 a. M. (Lawson vs. Farmers' Bank, 1 Ohio St., p. 206), and even earlier (Beckwith vs. Smith, 22 Me., p. 125; see Stephenson vs. Dickson, 24 Penn. St., p. 148); while on the other hand 5 A. M. (West vs. Brown, 6 Ohio St., p. 542), 6 A. M. (Chick vs. Pillsbury, 24 Me., p. 458), and even 9% A. M. (see Hawkes vs. Salter, 4 Bing., p. 715; Burgess vs. Vreeland, 4 N. J., p. 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. 3149. 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 Notice of dishonor, when to be mailed. Notice, how given by agent. |