from
Bouvier's Law Dictionary, Revised 6th Ed (1856)
NOTICE OF DISHONOR. 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
cue of an accepted bill or note.
2. 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.
3.-Sec 1. 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. 11 Wheat. 431,
436; Story on Bills, SS 390; 11 Mees. & Wels. 809. 2. The notice must
contain an assertion that their 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. 4 C.
340; 7 Bing. 530; l Bing. N. C. 192; 1 M. & G. 76; 3 Bing. N. C. 688; 10 A.
& E. 125. 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. Story on Bills, SS 301, 390. 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. 2 A. & E. N. R. 388, 416; 11 Mees. & Wels. 372;
Sto on P. N. SS 353; 11 Wheat. 431, 437; 2 Pet. 543; 2 John. Cas. 237; 2
Hill, (N. Y.) R. 588; 1 Spear, R. 244.
4.- Sec. 2. In general the notice may be given by the holder or some
one authorized by him; Story on Bills, SS 303, 304; 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. Chit. on Bills, 368, 8th edit.; 1. T. R. 170; 8 Miss. 704;
16 S. & R. 157, 160. 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. Story on P. N. SS 3Q4. When the bill or note i's held by
partners, notice by any of them is sufficient; and when joint-holders 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. Story on P. N. SS 305. If an infant be the holder
the notice may be given by him, or if he has a guardian, by the latter.
5.- Sec. 3. 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. Story on P. N. SS 307. 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. 1 Wend.
219; 4 Wash. C. C. 1. In cases of partnership, notice to either of the
partners is sufficient. Story on Bills, SS 299; Story on P. N. SS 308; 20
John. 176; 2 How. Sup. Ct. It. 457. Notice should be given to each of
several joint endorsers, who are not partners. 1 Conn. 368; 4 Cowen, 126; 6
Hill, (N. Y.) R. 282; Story on Bills, SS 299. Notice to an absent endorser
may be given to bis general agent. 1 M. & Selw. 545; 16 Martin, (Lo.) R. 87.
See 12 Wheat. 599; 4 Wash. C. C. 464; 3 Wend. 276.
6.-Sec. 4. 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. Bull. N. P.
271; 12 East, 434; 1 Harr. & J. 187; 1 Dall. 235; 2 Dall. 219, 233; 1
Yeates, 147; 3 Wash. C. C. 396; 1 Bay, 177; 11 John. 187; 10 Wend. 304; 13
Wend. 133; 5 Halst. 139; 4 J. J. Marsh. 61; Paine, 156; 2 Hayw. 332; 2
Marsh. 616. Though formerly it was doubtful whether the court or jury were
to judge as to the reasonableness of the notice in respect to time; 1 T. R.
168; 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. 10 Mass. 84, 86; 6
Watts & S. 399; 3 Marsh. 262; 2 Harris R. 488; Penn. 916; 1 N. H. Rep. 140;
17 Mass. 449, 453; 2 Aik. 9; Rice, R. 240; 2 Hayw. 45.
7.- Sec. 5. 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. 1 M. & S. 545, 554; 2 Pet. 100; 1 Pet. 578, 583; Story
on Bills, SSSS 284-290; 1 Rob. Lo. R. 572; 3 Rob. Lo. 261; 20 John. 372; 1
Conn. 329; 17 Mart.,Lo. 137, 158, 359; 19 Mart. Lo. 492; Story on P. N. 322.
But see 28 Pick. 305; 6 Watts & Serg. 262; 2 Aik. 263; 8 Ohio, 507, 510;
Rice, R. 240, 243; 1 Litt. R. 194. If the notice be put in the post office,
the holder must prove it reached the endorser. 2 Pet. 121. 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. Chit. on Bills, 504, 508, 513, 8th edit.; 1 Pet.
578; 11 John. 231. 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. Chit. on Bills,
518, 8th ed.; Story on P. N. SS 324; Bayl. on Bills, eh. 7, SS 2; 1 Pet.
582. When the post is re, sorted 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. 17 Mass. 449, 454; 1 Hill, (N.
Y.) R. 263; but see contra, 2 Rob. Lo. R. 117.
8.-Sec. 6. 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. 1 Marsh. 36; 5 Taunt.
240; S. C. 8 East, 168.
9.-Sec. 7. The same reasons which will excuse the want of a
presentment, will in general excuse a want of protest. See Presentment,
contracts, n. 8, 9.
10.-Sec. 8. 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. Story on P. N. SS 858. See Presentment, contracts,
n. 9.