The notice given by the holder of a bill of exchange or promissory note, to a drawer or endorser on the same, that it has been dishonored, either by not being accepted in the case of a bill, or paid in due of an accepted bill or note.
It is proper to consider, 1. The form of the notice; 2. By whom it is to be given; 3. To whom. 4. When; 5. Where; 6. Its effects; 7. When a want of notice will be excused; 8. When it will be waived.
Although no precise form of words is requisite in giving notice of dishonor, yet such notice must convey, 1. A true description of the bill or note so as to ascertain its identity; but if the notice cannot mislead the party to whom it is sent, and it conveys the real fact without any. doubt, although there may be a small variance, it cannot be material, either to regard his rights or to avoid his responsibility. 2. The notice must contain an assertion that ther bill has been duly presented to the drawee for acceptance, when acceptance has been refused, or to the acceptor of a bill or maker of a note for payment at its maturity, and dishonored. 3. The notice must state that the holder or other person giving the notice looks to the person to whom the notice is given for reimbursement and indemnity. Although in strictness this may be required where the language is otherwise doubtful and uncertain, yet in general, it will be presumed where in other respects the notice is sufficient.
In general the notice may be given by the holder or some one authorized by him or by some one who is a party and liable to pay the bill or note. But notice given by a stranger is not sufficient. On the death of the holder, his executor or administrator is required to give notice, and if none be then appointed, the notice must be given within a reasonable time after one may be appointed. When the bill or note i's held by partners, notice by any of them is sufficient; and when jointholders have the paper, and one dies, the notice may be given by the survivor; the assignee of the holder who is a bankrupt must give notice, but if no assignee be appointed when the paper becomes due the notice must be given without delay after his appointment; but it seems the bankrupt holder may himself give the notice. If an infant be the holder the notice may be given by him, or if he has a guardian, by the latter.
The holder is required to give notice to all the parties to whom he means to resort for payment, and, unless excused in point of law, as will be stated below, such parties will be exonerated, and absolved from all liability on such bill or note. But a party who purchases a bill, and without endorsing it, transmits it on account of goods ordered by him, is not entitled to notice of its dishonor. In cases of partnership, notice to either of the partners is sufficient. Notice should be given to each of several joint endorsers, who are not partners. Notice to an absent endorser may be given to bis general agent. The notice of dishonor must be given to the parties to whom the holder means to resort within a reasonable time after the dishonor of the bill when it is dishonored for non-acceptance, and he must not delay giving notice until the bill has been protested for non-payment. Though formerly it was doubtful whether the court or jury were to judge as to the reasonableness of the notice in respect to time yet it seems now to be settled that when the facts are ascertained it is a question for the court and not for the jury.
In considering as to where the notice should be given, a difference is made between cases where the parties reside in the same town, and where they do not. 1. When both parties reside in the same town or city, the notice should either be personal or at the domicil or place of business of the party notified, so that it may reach him on the very day he is entitled to notice. If the notice be put in the post office, the holder must prove it reached the endorser. But in those towns where they have letter carriers, who carry letters from the post office and deliver them at the houses or places of business of the parties, if the notice be put in the post office in time to be delivered on the same day, it will be sufficient. 2. When the parties reside in different towns or cities, the notice may be sent by the post, or a special messenger, or a private person, or by any other suitable or ordinary conveyance. When the post is resorted to, the holder has the whole day on which the bill becomes due to prepare his notice, and if it be put in the post office on the next day in time to go by either mails, when there is more than one, it will in general be sufficient.
The effect of the notice of dishonor, when properly given, and when it is followed by a protest when a protest is requisite, will render the drawer and endorsers of a bill or the endorsers of a note liable to the holder. But the drawer and endorsers may tender the money at any time before a writ has been issued; though the acceptor must pay the bill on presentment and cannot plead a subsequent tender.
The same reasons which will excuse the want of a presentment will in general excuse a want of protest.
A want of notice may be waived by the party to be affected after a full knowledge of the facts that the holder has no just cause for the neglect or omission.