Additional time for

notice by indorser.

Effect of notice of dishonor.

charged, as if he were himself an indorser. And if an agent of the owner employs a sub-agent, it is sufficient for each successive agent or sub-agent to give notice in like manner to his own principal.

NOTE.-Story on Notes, Sec. 326; West River Bank vs. Taylor, 7 Bosw., p. 466; Howard vs. Ives, 1 Hill, p. 263; Ogden vs. Dobbin, 2 Hall, p. 112; Mead vs. Engs, 5 Cow., p. 303; Farmers' Bank of Bridgeport vs. Vail, 21 N. Y., p. 485; Bray vs. Hadwen, 5 M. & Selw., p. 68; Firth vs. Thrush, 8 B. & C., p. 387. As to sub-agents, see Clode vs. Bayley, 12 M. & W., p. 51.

3150. Every party to a negotiable instrument, receiving notice of its dishonor, has the like time thereafter to give similar notice to prior parties as the original holder had after its dishonor. But this additional time is available only to the particular party entitled thereto.

NOTE.-Story on Notes, Sec. 331; 6 East, p. 3; 1 Hill, p. 263; 21 N. Y., p. 485; 13 C. B., p. 249; see 15 M. & W., p. 231.

3151. A notice of the dishonor of a negotiable instrument, if valid in favor of the party giving it, inures to the benefit of all other parties thereto whose right to give the like notice has not then been lost.

NOTE. Harrison vs. Ruscoe, 15 M. & W., p. 231; Mead vs. Engs, 5 Cow., p. 303; Stafford vs. Yates, 18 Johns., p. 327; Lysaght vs. Bryant, 9 C. B., p. 46.

ARTICLE VI.

EXCUSE OF PRESENTMENT AND NOTICE.

SECTION 3155. Notice of dishonor, when excused.

3155.

3156. Presentment and notice, when excused.
3157. Same.

3158. Delay, when excused.

3159. Waiver of presentment and notice.

3160. Waiver of protest.

Notice of dishonor is excused:

1. When the party by whom it should be given can

Notice of

dishonor,

not, with reasonable diligence, ascertain either the place of residence or business of the party to be when charged; or,

2. When there is no Post Office communication between the town of the party by whom the notice should be given and the town in which the place of residence or business of the party to be charged is situated; or,

3. When the party to be charged is the same person who dishonors the instrument; or,

4. When the notice is waived by the party entitled thereto.

NOTE. The provisions of Sec. 3131 require the pre-
sentment to be made in certain cases to a Notary Pub-
lic; therefore, there is no need of a section excusing
the presentment of a negotiable instrument.

Subd. 3.-Caunt vs. Thompson, 7 C. B., p. 400. In
that case, the indorser was executor of the maker, and
the note was presented to him and payment thereof
refused by him. Compare, however, Magruder vs.
Union Bank, 3 Peters, p. 87; 7 id., p. 287; Juniata
Bank vs. Hale, 16 Serg. & R.,
p. 157.

Subd. 4.-Conkling vs. King, 10 N. Y., p. 446; Min-
turn vs. Fisher, 7 Cal., p. 573. But a declaration by
an indorser to a disinterested third person "that the
fact of notice not having been given at proper time
would make no difference with him-he would do what
was right," was held not to be a sufficient waiver of
presentment and notice to fix the liability to the
indorser.-Olendorf vs. Swartz, 5 Cal., p. 480.

excused.

ment and

when

3156. Presentment and notice are excused as to Presentany party to a negotiable instrument who informs the notice, holder, within ten days before its maturity, that it will excused. be dishonored.

NOTE." Within ten days."-No term has heretofore been fixed by law. Information "that it will be dishonored."-See Spencer vs. Harvey, 17 Wend., p. 489; Leffingwell vs. White, 1 Johns. Cas., p. 99.

3157. If, before or after the maturity of an instru- Samo ment, an indorser has received full security for the

45-vol. ii.

Delay, when

excused.

Waiver of presentment and notice.

amount thereof, or the maker has assigned all his estate to him as such security, presentment and notice to him are excused.

NOTE.-Mechanics' Bank vs. Griswold, 7 Wend., p. 165; Corney vs. Da Costa, 1 Esp., p. 302; limited in Seacord vs. Miller, 13 N. Y., p. 55. This rule is founded upon the same principle as the series of cases that were overthrown in Hall vs. Newcomb, 7 Hill, p. 416. In Connecticut it has been held that no transactions between the maker and indorser of a negotiable instrument waive or excuse notice of dishonor to the latter, unless they so agree.-Holland vs. Turner, 10 Conn., pp. 308, 317. It would, perhaps, have been better had the Connecticut rule been adopted rather than the one in this section, which follows the New York decisions. If the maker intends that the indorser shall waive notice, he would naturally so stipulate with him, or he would give the security to the holder outright. See, also, Van Norden vs. Buckley, 5 Cal., p. 283; and also Olendorf vs. Swartz, 5 Cal., p. 480.

3158. Delay in presentment, or in giving notice of dishonor, is excused when caused by circumstances which the party delaying could not have avoided by the exercise of reasonable care and diligence.

NOTE. The rule heretofore has been liberal.-Story on Bills, Sec. 234; Story on Notes, Sec. 356; Firth vs. Thrush, 8 B. & C., p. 387; Baldwin vs. Richardson, 1 id., p. 245; Bateman vs. Joseph, 12 East., p. 433; 2 Camp., p. 461. Other excuses are mentioned (Story on Notes, Sec. 357), but it is doubtful whether they are allowed in this State. It is to be borne in mind that an excuse for delay will not justify a perpetual omission of notice.-Beale vs. Parrish, 20 N. Y., p. 407; see Ritchie vs. Bradshaw, 5 Cal., p. 228; Keyes vs. Fenstermaker, 24 Cal., p. 329; see, also, Jerome vs. Stebbins, 14 Cal., p. 457; Thompson vs. Williams, 14 Cal., p. 160.

3159. A waiver of presentment waives notice of dishonor also, unless the contrary is expressly stipulated; but a waiver of notice does not waive presentment.

NOTE.-Buchanan vs. Marshall, 22 Vt., p. 561; Burnham vs. Webster, 17 Mc., p. 50; see, however, Matthey vs. Galley & David, 4 Cal., p. 62; see, also, Mills vs. Beard, 19 Cal., p. 158.

protest.

3160. A waiver of protest on any negotiable in- Waiver of strument other than a foreign bill of exchange waives presentment and notice.

NOTE.-Coddington vs. Davis, 1 N. Y., p. 186; 3

Den., p. 16.

ARTICLE VII.

EXTINCTION OF NEGOTIABLE INSTRUMENTS.

SECTION 3164. Obligation of party, when extinguished.

3165. Revival of obligation.

3164. The obligation of a party to a negotiable obligation instrument is extinguished:

1. In like manner with that of parties to contracts in general; or,

2. By payment of the amount due upon the instrument, at or after its maturity, in good faith and in the ordinary course of business, to any person having actual possession thereof, and entitled by its terms to pay

ment.

NOTE.-See Secs. 3123 and 3124, and notes. By the commercial law, as recognized in England, a simple agreement to waive the debt created by a negotiable instrument, although without a new consideration or a seal, discharges the debtor.-Foster vs. Dawber, 6 Exch., p. 839; Byles on Bills (5 ed.), p. 145. This rule has been either overlooked or overruled in New York.-See Seymour vs. Minturn, 17 Johns., p. 169; Crawford vs. Mills, 13 id., p. 87; Smith vs. Bartholomew, 1 Metc., p. 276; Ruggles vs. Patten, 8 Mass., p. 480. Assignment of a note to maker amounts to payment, etc.-See Gordon vs. Wansey, 21 Cal., p. 77; see, also, Morrill vs. Morrill, 26 Cal., p. 288. The surrender of a note is primary evidence of its payment.Smith vs. Harper, 5 Cal., p. 329. But a surrender by mistake, under supposition that it is fully paid, yet if not fully paid the party is liable for the balance due.Banks vs. Marshall, 23 Cal., p. 223; see, further, Hook vs. White, 36 Cal., p. 299.

of party, when extinguished.

obligation.

3165. If, after its extinction, a negotiable instru- Revival of ment comes into the possession of an indorsee in due course, the obligation thereof revives in his favor.

NOTE.-Manhattan Co. vs. Reynolds, 2 Hill, p. 140; but see Elgin vs. Hill, 27 Cal., p. 372; Gordon vs. Wansey, 21 Cal., p. 77; Folsom vs. Bartlett, 2 Cal., p. 163; Vinton vs. Crowe, 4 Cal., p. 309; Coye vs. Palmer, 16 Cal., p. 158; Hayward vs. Stearns, 39 Cal., p. 58; Fuller vs. Hutchings, 10 Cal., p. 523; see, however, Sec. 440 of Code of Civil Procedure.

CHAPTER II.

BILLS OF EXCHANGE.

ARTICLE I. FORM AND INTERPRETATION.

II. DAYS OF Grace.

III. PRESENTMENT FOR ACCEPTANCE.

IV. ACCEPTANCE.

V. ACCEPTANCE OR PAYMENT FOR HONOR.

VI. PRESENTMENT FOR PAYMENT.

VII. EXCUSE OF PRESENTMENT AND NOTICE.
VIII. FOREIGN BILLS.

Bill of exchange, what.

ARTICLE I.

FORM AND INTERPRETATION OF A BILL.

SECTION 3171. Bill of exchange, what.

3172. Drawee, in case of need.

3173. Bill in parts of a set.

3174. When must be in a set.

3175. Presentment, etc., of part of set.

3176. Bill, where payable.

3177. Rights and obligations of drawer.

3171. A bill of exchange is an instrument, nego

tiable in form, by which one, who is called the drawer, requests another, called the drawee, to pay a specified sum of money.

NOTE.-A bill of exchange is a written order for the payment of money.-1 Parsons on Notes and Bills, p. 52. A bill of exchange, popularly termed a draft, is written in the form of an open letter, directing the person to whom it is addressed to pay the sum of money therein specified to a third person on account of the writer or person by whom it is drawn.-Edwards