NOTICE, AVERMENT OF, in pleading. This is frequently necessary, particularly in special actions of assumpsit.

2. When the matter alleged¹ in the pleading is to be considered as lying more properly in the knowledge of the plaintiff, than of the defendant², then the declaration ought to state that the defendant had notice thereof; as when the defendant promised to give the plaintiff as much for a commodity as another person had given, or should give for the like.

3. But where the matter does not lie more properly in the knowledge of the plaintiff, than of the defendant, notice need not be averred³. 1 Saund. 117, n. 2; 2 Saund. 62 a, n. 4; Freeman, R. 285. Therefore, if the defendant contrasted to do a thing, on the performance of an act by a stranger, notice need not be averred, for it lies in the defendant's knowledge as much as the plaintiff's, and he ought to take notice of it at his peril⁴. Com. Dig. Pleader, C 75. See Com. Dig. Id. o 73, 74, 75; Vin. Abr. Notice; Hardr. R. 42; 5 T. R. 621.

4. The omission⁵ of an averment of no- tice, when necessary, will be fatal on de- murrer or judgment⁶ by default; Cro. Jac. 432; but may be aided by verdict; 1 Str. 214; 1 Saund. 228, a; unless in an action against the drawer of a bill, when the omission of the averment of notice of non-pay- ment by the acceptor is fatal, even after verdict. Doug. R. 679.

NOTICE OF DISHONOR. The notice given by the holder⁷ of a bill of exchange or promissory note, to a drawer or endorser⁸ 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 waived⁹.

3. - SS1. Although no precise form of words is requisite¹⁰ in giving notice of dis- honor, yet such notice must convey, 1. A true description of the bill or note so as to ascertain¹¹ 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 va- riance, 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 ther bill has been duly presented to the drawee for accept- ance, when acceptance has been refused, or to the acceptor of a bill, or maker¹² of a note for payment at its maturity¹³, 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 no- tice is given, for reimbursement¹⁴ and indem- nity. Story on Bills, SS 301, 390. Although in strictness this may be required, where the language is otherwise doubtful and uncer- tain, yet, in general, it will be presumed where in other respects the notice is suffi- cient. 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.-SS 2. In general the notice may be given by the holder or some one authorized¹⁵ 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 administrator¹⁶ is re- quired to give notice, and, if none be then Appointed, the notice must be given within a reasonable time after one may be ap- pointed¹⁷. 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 joint¹⁸- holders¹⁹ have the paper, and one dies, the notice may be given by the survivor²⁰; the assignee of the holder who is a bankrupt, must give notice, but if no assignee be ap- pointed 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 guardian²¹, by the latter. .

5.-SS 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 exonerated²², and ab- solved from all liability on such bill or note. Story on P. N. SS 307. But a party who purchases a bill, and, without endorsing²³ it, transmits it on account of goods ordered by him, is not entitled to notice of its dis- honor. 1 Wend. 219; 4 Wash. C. C. 1. In cases of partnership²⁴, 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 endorsers²⁵, 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 gene- ral agent. 1 M. & Selw. 545; 16 Martin, (Lo.) R. 87. See 12 Wheat. 599; 4 Wash. C. C. 464; 3 Wend. 276.

6. - SS 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 dis- honored 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. Marsh²⁶. 61; Paine, 156; 2 Hayw. 332; 2 Marsh. 616. Though formerly²⁷ it was doubtful whether the court or jury were to judge as to the reasonable- ness of the notice in respect to time; 1 T. R. 168; yet, it -seems now to be settled, that when the facts are ascertained²⁸, it is a question for the court and 'not for the jury. 10 Mass. 84, 86; 6 Watts²⁹ & 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.-SS 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 con- veyance. 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. - SS6. The effect of the notice of dis- honor, when properly given, and when it is followed by a protest, when a protest is requisite, will render the drawer and en- dorsers 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 writ³⁰ has been issued; though the acceptor must pay the bill on present- ment, and cannot plead a subsequent ten- der. 1 Marsh. 36; 5 Taunt³¹. 240; S. C. 8 East, 168.

9. - SS 7. The same reasons which will excuse the want of a presentment, will in general excuse a want of protest. See Pre- sentment, contracts, n. 8, 9. 10.-SS 8. A want of notice may be waived by the party to be affected³², 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.