the rights of persons sending the notice, and so, if the notice is actually received in time, it is sufficent even if sent to the wrong place.

319. Sufficiency of notice.-Notice may be written or personal and should state the following material facts: a sufficient description of the note or bill, a statement of its presentment for acceptance or payment, as the case may be, a statement of its dishonor, a statement of its protest, if such be the fact and a notice that the party notified is to be held liable.

320. Notice waived and excused.—A drawer or indorser may waive notice orally or in writing, before or after it should be given. Waiver is most often accomplished by accompanying the signature with the words "waiving notice" or "waiving protest," the latter phrase including a general waiver of presentment, protest and notice.

If after due diligence, notice cannot be given or if the mail containing it miscarries, it is excused. Where a drawer draws on a person who has no funds of the drawer and who has made no promise, express or implied, to honor the instrument, notice to the drawer is unnecessary. Notice need not be given to an indorser where the instrument was made or accepted for his accommodation.

321. Protest.—Protest is the act of a notary in establishing and certifying to due presentment and dishonor of a negotiable instrument. While protest is not necessary, except in cases of foreign bills, it is very convenient in all cases, because it affords the easiest and most conclusive method of proving the dishonor and the notice to the drawer and indorsers, the certificate of the notary being prima facie evidence of these facts.

The certificate sets forth all the material facts, and

usually certifies to the fact that the notary has the required notices. It is made by a notary or, if none can be found, by any respectable citizen in the presence of at least two witnesses. Protest must be made at the place and on the day of dishonor, but the certificate of protest may be made out later.

TO ALL whom these Presents shall come. BE IT KNOWN, That on the seventh day of November, in the year of our Lord one thousand nine hundred and ten, at the request of THE HOLDERS thereof, I, HENRY W. UTTER, Notary Public, duly commissioned and sworn, dwelling in Westchester County, New York, did present the original PROMISSORY NOTE, hereunto annexed, to William Harvey, at No. 185 Broadway, in this City (where the same is payable), and did demand payment thereof, which was refused.

WHEREUPON, I, the said Notary, at the request aforesaid, did PROTEST, and by these presents do publicly and solemnly PROTEST as well against the Maker and Endorsers of the said PROMISSORY NOTE, as against all others whom it doth or may concern, for exchange, re-exchange, and all costs, charges, damages and interest, already incurred, and hereafter to be incurred for want of payment of the said PROMISSORY NOTE.

THUS DONE AND PROTESTED, at the City of New York, the day [SEAL.] and year first above written. IN TESTIMONIUM VERITATIS:

HENRY W. UTTER, Notary Public, Westchester Co. Certificate filed in New York Co. Please give notice of this Protest to all parties to the within Note as soon as you receive this.

CHAPTER XXI

DEFENSES

322. Definition.-There are two classes of defenses. One includes those defenses known as personal, conditional or equitable defenses and these are valid when set up by a party in a suit brought by his immediate successor or by one who is not a holder in due course. The other class contains real or absolute defenses, attached to the instrument itself and good as against all persons. Personal defenses are peculiar to negotiable instruments.

EXAMPLE

315. A owns a watch which is stolen by B who sells it to C for value, C having no notice of B's theft. A may recover the watch from C. If in this example, the thing stolen had been a bearer note C would have good title as against A.

323. Personal defenses.-The common personal defenses are fraud; duress; want or failure of consideration; illegality, unless the statute declares the contract void; release, renunciation or payment; want of title in the transferrer. It will be noticed that all these are personal in their nature; they imply an act or omission by a person and are not necessarily inherent in the instrument.

324. Fraud and duress.-Fraud is variously defined; a promise made without intention of performing it; the suppression of that which is true by one having knowledge of the fact with intent to deceive by such suppres

sion; the suggestion as a fact of that which is not true, are examples of fraud. It must be remembered that fraudulent intent is almost always an element, and, as intent is difficult to prove, the defense of fraud, while available, is often practically unavailing.

EXAMPLE

316. B presented a paper to A who was near-sighted and told him that it was a memorandum of sale. Before the paper was actually signed it was deftly removed and a promissory note was substituted which note A signed. The note is negotiated by B to C. Can C recover? No, unless A is guilty of negligence. It must be noted that this is not an illustration of fraud, but is governed by the rule of contracts that the minds of the parties must meet. Here A thought he was signing one paper and B knew he was signing another.

In cases of blindness, illiteracy, inexperience or infirmity the courts generally imply negligence unless all means are used to ascertain the true nature of the instrument.

Duress consists in actual or threatened violence or imprisonment to a man or his wife, child or parent.

325. Partial or total want or failure of consideration. -If there is a partial want of consideration or if the consideration in the first instance is good, but afterwards partially fails, as between immediate parties the want or failure will serve as a defense up to the amount of the consideration that is lacking. Total want or failure gives rise to a total defense as between immediate parties.

326. Illegality.-A totally or partially illegal consideration renders an instrument void as between immediate parties. Sometimes by statute, a contract tainted with illegality is avoided absolutely. Where such forms of

illegality exist, the instrument is void even in the hands of a holder in due course. Illegality may arise from statutes, from the common law or from the demands of public policy. Gambling, usury and laws against the sale of intoxicating liquors frequently make certain instruments voidable, though in some jurisdictions they render the contract absolutely void.

327. Release, renunciation or payment.-Before maturity a maker of a note or an acceptor of a bill may be released by the holder, or he may pay the holder, or the holder may renounce absolutely and unconditionally his right to recovery. Against this holder the maker or acceptor has a good defense. But if these acts or any of them are done at or after maturity and the paper comes into the hands of a holder in due course these defenses will be unavailing.

328. Discharge of persons secondarily liable.-We have learned that the maker of a note and the acceptor of a bill are primarily liable and that drawers and endorsers are secondarily liable. Now if a holder discharges the debt of a person primarily liable and then seeks to hold a person secondarily liable, he in effect cuts off the latter's ultimate source of recovery. Such a discharge of a party primarily liable may be used as a personal defense against every person who would have a right to recover from the discharged person.

EXAMPLE

The note is duly negotiated
Valuable shares of stock were

317. A gives his note to B. from B to C, to D, to E, to F. given as security by A and passed from hand to hand with the note. Before maturity F gave the shares to A. At maturity A was unable to pay. F cannot recover from any of the indorsers. If F after releasing the security to A, negotiated to X a holder in due course, X could sue all parties.