"1. Where the drawer and drawee are the same person. "2. Where the drawee is a fictitious person or a person not having capacity to contract.

"3. Where the drawer is the person to whom the instrument is presented for payment.

"4. Where the drawer has no right to expect or require that the drawee or acceptor will honor the instrument.

"5. Where the drawer has countermanded payment. "[Sec. 115.] Notice of dishonor is not required to be given to an indorser in either of the following cases: "1. 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 instrument. "2. Where the indorser is the person to whom the instrument is presented for payment.

"3. Where the instrument was made or accepted for his accommodation.

"[Sec. 116.] Where due notice of dishonor by nonacceptance has been given, notice of a subsequent dishonor by non-payment is not necessary, unless in the meantime the instrument has been accepted.

"[Sec. 117.] An omission to give notice of dishonor by non-acceptance does not prejudice the rights of a holder in due course subsequent to the omission.

"[Sec. 118.] Where any negotiable instrument has been dishonored it may be protested for non-acceptance or non-payment, as the case may be, but protest is not required except in the case of foreign bills of exchange.'

Question 546: May notice of dishonor be waived? May the waiver be implied? May it be before or after the notice should have been given?

(2) If the waiver is embodied in the instrument, does it operate against all indorsers?

(3) If the party "waives protest," of what else is this a waiver?

(4) When is delay in giving notice excused?

(5) When is notice of dishonor not required: (a) to be given drawer? (b) to be given indorser?

(6) Is protest required in case of promissory notes and inland bills? Upon what instrument is protest absolutely essential? May it be given in other cases?

Case 547. Gove et al. v. Vining, 7 Metc. (Mass.) 212. Suit by indorsees against the indorser on a promissory note. Defense, that notice of dishonor was not given. The facts were that the note was made by Alexander Vining to Polly Vining and indorsed by Polly. The present holder sent a demand on the maturity of the note, to Alexander as maker to pay the note. The messenger did not see Alexander, but handed the notice to Polly, who read it, and then requested that there be no suit on the note until Alexander could go down and see the holder about it.

Point Involved: What amounts to an implied waiver by an indorser of presentment for payment and notice of dishonor.

SHAW, C. J.: the Court are of opinion that when the indorser, shortly before the time when the note becomes due, says to the holder that an arrangement for its payment is about being made, and in direct terms or by reasonable implication, requests the holder to wait or give time, it amounts to an assurance that the note will be paid that the promisor or indorser will pay it-and is a waiver of demand and notice. It tends to put the holder off his guard, and induces him to forego making a demand at the proper time and place; and it would be contrary to good faith to set up such want of demand and notice caused perhaps by such forbearance as a ground of defense.

*

Question 547: Was there waiver in this case? Explain ?

CHAPTER 63

PROTEST

§ 511. Protest necessary to charge drawer and indorser of foreign bill. § 512. Who authorized to make protest.

§ 513. Time, place and manner of protest.

§ 514. Protest dispensed with or waived.

§§ 511-514. (Nego. Instru., Secs. 119-122.)

Case 548. Uniform Negotiable Instruments Act, Sec. 152.

"Where a foreign bill appearing on its face to be such, is dishonored by non-acceptance, and when such a bill which has not previously been dishonored by non-acceptance is dishonored by non-payment, it must be duly protested for non-payment. If it is not so protested, the drawer and indorsers are discharged. Where a bill does not on its face purport to be a foreign bill protest thereof, in case of dishonor, is unnecessary."

Question 548: When is protest necessary? Is it necessary on an inland bill or a promissory note? What is the effect of omitting protest when necessary?

Case 549. Uniform Negotiable Instruments Act, Sec. 153.

"The protest must be annexed to the bill or must contain a copy thereof, and must be under the hand and seal of the notary making it and must specify:

"1. The time and place of presentment.

"2. The fact that presentment was made and the manner thereof.

"3. The cause or reason for protesting the bill.

"4. The demand made and the answer given, if any, of the fact, that the drawee or acceptor could not be found." Question 549: What are the requirements as to protest?

Case 550. Uniform Negotiable Instruments Act, Sec.

154.

"Protest may be made by:

"1. A notary public; or,

"2. By any respectable resident of the place where the bill is dishonored, in the presence of two or more credible witnesses."

Question 550: By whom may protest be made?

Case 551. Uniform Negotiable Instruments Act, Secs. 155, 156.

"When a bill is protested, such protest must be made on the day of its dishonor, unless delay is excused as herein provided. When a bill has been duly noted, the protest may be subsequently extended as of the date of the noting.

"A bill must be protested at the place where it is dishonored, except that when a bill drawn payable at the place of business or residence of some person, other than the drawee, has been dishonored by non-acceptance, it must be protested for non-payment at the place where it is expressed to be payable; and no other presentment for payment to, or demand on, the drawee is necessary." Question 551: When must protest be made? Where?

Case 552. Uniform Negotiable Instruments Act, Sec. 158.

"When the acceptor has been adjudged a bankrupt or an insolvent or has made an assignment for the benefit of creditors, before the bill matures, the holder may cause the bill to be protested for better security against .the drawer and indorsers."

Question 552: What is protest for better security?

Case 553. Uniform Negotiable Instruments Act, Sec. 159.

"Protest is dispensed with by any circumstances which would dispense with notice of dishonor. Delay in noting or protesting is excused when delay is caused by cir

cumstances beyond the control of the holder and not imputable to his default, misconduct or negligence. When the cause of delay ceases to operate, the bill must be noted or protested with reasonable diligence."

Question 553: When will protest be dispensed with?

Case 554. Uniform Negotiable Instruments Act, Sec. 160.

"Where a bill is lost or destroyed, or is wrongly detained from the person entitled to hold it, protest may be made on a copy or written particulars thereof."

Question 554: How is protest made on lost or destroyed bill?