may be supplemented and validated by verbal communication; a misdescription of the instrument shall not vitiate the notice, unless the party to whom the notice is given be, in fact, misled thereby. 5. To Whom and By Whom Notice Must Be Given. Notice must be given 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." When acceptance of a bill has been refused, and when payment of either a bill, note, or check has been refused or neglected, the holder, or his agent, must give notice of dishonor to hold the parties liable. The parties to be notified are: In the case of a dishonored bill or check, the drawer and indorsers, or the agent of either; in case of a note, the indorsers, or their agents. The maker of a note or the acceptor of a bill need not be notified of the dishonor of it for non-payment in order to hold them liable;" a person who is a primary debtor, not an indorser, is not entitled to notice of dishonor." When notice is given by an agent it may be given either in his own name or in the name of any party entitled to give notice, whether the party be his principal or not." Where the instrument has 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." 6. How and When Notice Must Be Given. - The law requires from the holder promptness in giving notice of 12 Eng. B. of E. Act, Sec. 49 (1); Can. B. of E. Act, Sec. 49 (a); N. Y. N. I. L., Sec. 161; Pa. N. I. L., Sec. 90. 13 155 Pa. 210 (1893). 14 53 Ill. App. 581 (1894). 15 Eng. B. of E. Act, Sec. 49 (2); Can. B. of E. Act, Sec. 49 (b);' N. Y. N. I. L., Sec. 162; Pa. N. I. L., Sec. 91. 16 Eng. B. of E. Act, Sec. 49 (13); Can. B. of E. Act, Sec. 49 (2); N. Y. N. I. L., Sec. 165; Pa. N. I. L., Sec. 94. dishonor, for unless the notice be given immediately, the party sought to be charged upon the instrument may lose his indemnity, and, if he should lose it through the neglect of the holder, it is just that the latter should lose his recourse against him whom his neglect has actively or presumptively injured. Unless excused or dispensed with as herein instructed, notice of dishonor may be given as soon as the instrument is dishonored," and it must be given within a reasonable time thereafter." The notice may be given either personally, or by messenger or other agent, or through the mail. The usual method of giving notice, where the parties live in the same place, is by messenger or other agent. When the party giving notice and the party to receive it reside in the same place, notice must be given within the following times: If given at the place of business of the person to receive notice, it must be given before the close of business hours on the day following; if given at his residence, it must be given before the usual hours of rest on the day following; if sent by mail, it must be deposited in the postoffice in time to reach him in the usual course on the day following." Where the parties reside in different places, the notice, if sent through the mail, must be posted in time to go by mail the day following the day of dishonor; or if there be no mail at a convenient hour on that day, by next mail thereafter." If given otherwise than through the mail, then within the same time that notice would have been received in due course of mail, if posted within the time above specified." Where the only mail on the day following the day of dishonor leaves before 7 o'clock in the morning, as this is not a convenient hour, it is sufficient if the notice go by the next mail thereafter. Where notice of dishonor is duly addressed and deposited in the post-office, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails; depositing a 173 Campb. (Eng.) 193 (1812). 18 L. R. 1 C. P. (Eng.) 351 (1866). 19 N. Y. N. I. L., Sec. 174; Pa. N. I. L., Sec. 103. 20 N. Y. N. I. L., Sec. 175; Pa. N. I. L., Sec. 104. 21 Ibid. notice in any branch post-office, or in any letter-box under the control of the post-office department, is deemed to have been deposited in the post-office." In Canada, by statutory provision, notice of the protest or dishonor of any bill payable in Canada is sufficiently given if addressed in due time to any party to such bill entitled to notice at his customary address or place of residence, or at the place at which such bill is dated, unless any such party have, under his signature, designated another place; and, in such latter case, such notice shall be sufficiently given if addressed to him in due time at such other place; and such notice so addressed shall be sufficient, although the place of residence of such party is other than either of such abovementioned places; and such notice shall be deemed to have been duly served and given for all purposes if it be deposited in any post-office, with the postage paid thereon, at any time. during the day on which such protest or presentment has been made, or on the following juridical or business day; such notice shall not be invalid by reason of the fact that the party to whom it is addressed is dead." In case of dispute, it rests with the sender to prove that the letter containing the notice was duly addressed and posted;" and the sufficiency of the direction is a question of reasonable diligence. Where a party receives notice of dishonor, he has, after the receipt of such notice, the same time for giving notice to antecedent (remote) parties that the holder has after the dishonor;" and this means within the same limits of time that would suffice in the case of immediate parties." 26 7. When Party Is Dead or Bankrupt. – When a 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 = 22 Eng. B. of E. Act, Sec. 49 (15); N. Y. N. I. L., Secs. 176, 177; Pa. N. I. L., Sec. 105; Can. B. of E. Act, Sec. 49 (5). 23 Can. B. of E. Act, Sec. 49 (4). 247 Q. B. (Eng.) 846 (1845). 25 Eng. B. of E. Act, Sec. 49 (14); Can. B. 26 22 L. J. C. P. (Eng.) 135 (1853). be sent to the last residence or last place of business of the deceased." Where the parties to be notified are partners, notice to any one partner is notice to the firm, even though there have been a dissolution." Notice to joint parties who are not partners must be given to each of them, unless one of them have authority to receive such notice for the others." 30 Where a party has been adjudged a bankrupt or an insolvent, or has made an assignment for the benefit of creditors, notice may be given either to the party himself or to his trustee or assignee." 8. Place to Which Notice Must Be Sent. If the party entitled to notice have a place of business, the notice should be addressed to him there; if he have not, then it should be addressed to him at his residence, and the party giving notice is bound to use reasonable diligence to discover such place of business or residence." When, however, the bill contains an address, such address is in any case sufficient to charge the party giving that address." As provided in some of the United States, in the negotiable instruments laws," where a party has not given an address, notice of dishonor must be sent as follows: (a) Either to the post-office nearest his place of residence, or to the postoffice where he is accustomed to receive his letters; or, (b) if he live in one place and have his place of business in another, notice may be sent to either place; or, (c) if he be sojourning in another place, notice may be sent to the place where he is sojourning. But, where the notice is actually received by the party within the specified time, it is sufficient, though not sent in accordance with the foregoing requirements. = 28 N. Y. N. I. L., Sec. 169; Pa. N. I. L., Sec. 98. 29 N. Y. N. I. L., Sec. 170; Pa. N. I. L., Sec. 99. 30 Can. B. of E. Act, Sec. 49 (j); Eng. B. of E. Act, Sec. 49 (11); N. Y. N. I. L., Sec. 171; Pa. N. I. L., Sec. 100; 5 Hill (N. Y.) 232 (1843). 31 Eng. B. of E. Act. Sec. 49 (10); N. Y. 32 L. R. 4 Q. B. (Eng.) 639 (1869). 34 N. Y. N. I. L., Sec. 179; Pa. N. I. L.. 9. When Notice Is Excused and Dispensed With. Delay in giving notice is excused where the delay is caused by circumstances beyond the control of the party giving notice, and not imputable to his own fault, misconduct, or negligence. When the cause of delay ceases to operate, the notice must be given with reasonable diligence." Notice 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; also, by waiver, express or implied." Notice of dishonor is dispensed with, as to the drawer of a bill, (a) where the drawer and drawee are the same person; (b) where the drawee is a fictitious person, or a person not having capacity to contract; (c) where the drawer is the person to whom the bill is presented for payment; (d) where the drawee or acceptor is, as between himself and the drawer, under no obligation to pay the bill; and (e) where the drawer has countermanded payment." Notice of dishonor is unnecessary in these cases, because the drawer, by lack of notice, loses no right, such as he has in other cases, to indemnify himself from other parties for the amount he is required to pay upon the instrument. Notice is dispensed with as to an indorser, (a) 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 bill; (b) where the indorser is the person to whom the bill is presented for payment; and (c) where the bill was accepted or made for his accommodation.3 One who draws a bill without reasonable ground to believe that it will be honored by the drawee is treated much as if, instead of having drawn a bill, he had made a promissory note for the sum, and is not entitled to notice in case of 35 Eng. & Can. B. of E. Acts, Sec. 50; N. Y. N. I. L., Sec. 184; Pa. N. I. L., Sec. 113; L. R. 5 Ex. (Eng.) 61 (1870). 36 Eng. & Can. B. of E. Acts, Sec. 50 (2); N. Y. N. I. L., Sec. 183; Pa. N. I. L., Sec. 112. 37 Eng. & Can. B. of E. Acts, Sec. 50 (c); N. Y. N. I. L., Sec. 185; Pa. N. I. L., Sec. 114. 38 Eng. & Can. B. of E. Acts, Sec. 50 (đ); N. Y. N. I. L., Sec. 186; Pa. N. I. L., Sec. 115. |