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the note; it may happen to misstate some particular, and yet it will be held sufficient if it is apparent that the party could not have been misled as to the instrument intended. Thus, in a case where the notice described the note in a bank correctly, except as to its date, and it appeared that there was no other note of the makers indorsed by the defendant at the bank, it was held that the notice was sufficient.1

The entire omission of the maker's name in the notice of dishonor would be fatal;2 but notice to the acceptor, describing the bill as "drawn by you," though the drawer was not named, there being no proof that he had drawn or indorsed any other paper with which it could be confounded, and it being otherwise correctly described, was held sufficient. In a case where the notice to the indorser called the note Jotham Cushing's note, but the name was in fact Jotham Cushman, in an action against the indorser the Court directed the jury to find for the plaintiff, if they believed the defendant must, from the notice, have necessarily known what note was intended, and this direction was held to be correct.4

A misdescription of the amount, or of the names of the parties, or the time the paper fell due, will not render the notice defective, provided it is certain to what instrument the notice refers.5

Thus, a notice was in this form:

"$600.

Cayuga Bank, Auburn, May 3d, 1848. "SIR: Take notice that S. Warden's note for three hundred dollars, payable at this bank, was this evening protested for nonpayment, and the holders look to you for the payment thereof.”

The amount was misstated, it being in the note $600; but it was held sufficient.6

The decisions go to the extent of holding that a notice to the indorser of a note, simply stating the name of the maker, the

1 Mills v. Bank of U. S. 11 Wheat. 431. See Cook v. Litchfield, 5 Sandf. 340.

2 Home Ins. Co. v. Green, 19 N. Y. 518.

3 Gill v. Palmer, 29 Conn. 54.

4 Smith v. Whiting, 12 Mass. 6.

5 Carter v. Bradley, 19 Me. 62; Snow v. Perkins, 2 Mich. 238; McCune v. Belt, 38 Mo. 291; Moorman v. Bank of Alabama, 12 Ala. 353.

6 Cayuga Co. Bank v. Warden, 1 Comst. 413; S. P. Bank of Alexandria v. Swan,

9 Pet. 33; Bank of Rochester v. Gould, 9 Wend. 279; Wood v. Watson. 53 Me. 300; Rowan v. Odenheimer, 5 Sm. & M. 44.

amount, and the fact that it was indorsed by the party to whom notice was sent, is sufficient. But if there are any circumstances which caused this meager description to mislead the party receiving the notice-as, for instance, if he were the indorser of two or more notes to which the terms of the notice might equally apply then the notice might be void for uncertainty of description. The notice should be signed by some one, as showing at whose instance it was given; it need not mention him as the holder.2

§ 120. The fact of dishonor.-It is sufficient if it can be reasonably inferred from the notice that the instrument was dishonored, and the fact need not be expressly stated; but it must appear from the instrument, by the use of some word or phrase, that the note or bill was dishonored. The mere statement that it has not been paid is not sufficient. More than the fact of non-payment is required; it should appear that a due presentment was made. Thus, in Page v. Gilbert, Walton, J., says: "A notice to the indorser of a note, which merely informs him of the non-payment of the note, and demands payment of him, without stating that payment has been demanded of the maker, or giving any legal excuse for not demanding it of him, is not sufficient to charge the indorser." But the direct statement that the instrument has been "dishonored" is sufficient, for that implies the necessary steps to dishonor, a presentment and demand.5 So the use of the term "protested" is sufficient to apprise the party of the dishonor. So, when it was stated, "your bill is this day returned with charges,"7 or

1 Daniel on Neg. Instruments, Sec. 979; 1 Pars. N. & B. 473; Story on Bills, Sec. 301.

2 Bradley v. Davis, 26 Me. 45; Gillespie v. Nevill, 14 Cal. 408; Klockenbaum v. Pierson, 16 Cal. 375; Walker v. State Bank, 8 Miss. 704; Shed v. Brett, 1 Pick. 401.

3 Dole v. Gold, 5 Barb. 490; Lockwood v. Crawford, 18 Conn. 361; Clark v. Eldridge, 13 Met. 96; Armstrong . Thurston, 14 Md. 148; Phillips v. Gould, 8 C. & P. 355; Strange v. Price, 10 Ad. & El. 125; Hartley v. Case, 4 Barn. & C. 339 4 60 Me. 488.

5 Stocken v. Collin, 9 C & P. 653; Lewis v. Gompertz, 6 M. & W. 400.

6 Wheaton v. Willmarth, 13 Met. 422; McFarland v. Pico, 8 Cal. 636; Eastman v. Turman, 24 Cal. 383; Kilgore v. Buckley, 14 Conn. 362; Smith v. Little, 10 N. H. 526; Housatonic Bank v. Laflin, 5 Cush. 546.

Grudgeon v. Smith, 6 Ad. & El. 499.

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§ 121. As to notice of demand for payment from the party notified, it is the usual course to insert it; but it is held that the fact of apprising the party of the dishonor of a certain note or bill inferentially notifies him that he is looked to for payment. Thus, in United States v. Carneal,3 Story, J., giving the opinion of the Court, says: "A suggestion has been made at the bar, that a letter to the indorser, stating the demand and dishonor of the note, is not sufficient unless the party sending it also informs the indorser that he is looked to for payment. But when such notice is sent by the holder, or by his order, it necessarily implies such a responsibility over. For what other purpose could it be sent? We know of no rule which requires a formal declaration to be made to this effect. It is sufficient if it may be reasonably inferred from the nature of the notice." The prevailing rule is, therefore, that the mere fact of giving notice to the party implies that he is looked to for payment. But the safer course is to give all the elements of the notice before laid down. It is now decided that it is unnecessary to accompany the notice of dishonor of a foreign bill of exchange with a copy of the protest; but information of the protest should be sent if the party to whom notice is transmitted resides abroad.6

1 Everard v. Watson, 1 El. & B. 801.

2 De Wolf v. Murray, 2 Sandf. 166.

5

In Reynolds v. Appleman, 41 Md. 615, a notarial notice of protest was held sufficient in the following words: "Baltimore, December 23d, 1871-Reynolds & Savin: Please take notice that M. D. Savin, C. F. Abbott's note, dated Baltimore, September 20th, 1871, payable ninety days after date to the order of Reynolds & Savin, for $340, payable at the Third National Bank, and by you indorsed, is delivered to me by the cashier of the Western National Bank for protest, and the same not being paid, payment thereof having been demanded and refused, is protested, and will be returned to the said cashier, and that you will be held liable for the payment thereof." The Court held that, in substance and by fair implication, this notice gave all that was necessary, though it is some. what informal.

32 Pet. 543.

4 Warren v. Gilman, 5 Shep. 360; Cowles v. Harts, 3 Conn. 517; Townsend v. Lorraine Bank, 2 Ohio St. 345; Burgess v. Vreeland, 4 N. J. 71; Story on Notes, Sec. 353.

5 Hooker v. Anderson, 21 Wend. 372; Goodman v. Harvey, 4 Ad. & El. 870; Wallace v. Agry, 4 Mason, 336.

Rogers v. Stephens, 2 T. R. 713.

§ 122. The party who gives notice. The holder or his agent is the proper party to give notice. But notice by any party whose name is on the instrument and is liable, will be available for the holder. Thus, suppose the fourth indorser be the holder he notifies the third, the third the second, and the second the first; the latter is liable to all the parties.1

:

In case the holder notifies all the parties, and the notice reaches them, then an intermediate indorser who takes up the bill or note may avail himself of this notice against any of the preceding indorsers, though he himself has not given the notice. But suppose a holder to have attempted to give notice and failed, using all due diligence, so that he did what entitled him to recover, and that a party on the note takes it up, can the latter, if he takes up the note or bill, recover on it, though he has not given notice? It is agreed that if the party takes up the note or bill from the one who was entitled to recover on it, because he had, under the circumstances, used diligence in giving notice, that the party so paying is substituted to the rights of the other, and is entitled to recover.2

It is certain a mere stranger cannot give notice to inure to any one's benefit. The party bound to pay has a right to notice from some one who has a right of action against him, and who in this way apprises him that he will stand on his rights. It is, therefore, incompetent for one whose liability is not fixed to give notice. The question has arisen, whether an acceptor could give notice. In the case of Chapman v. Keene, it was decided, overruling other cases, that notice might emanate from another party besides the holder, and the latter might avail himself of it. This was approved in Maryland, in Brailsford v. Williams. In Massachusetts, it has been held that a drawee who refuses acceptance cannot give a valid notice.

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1 Hilton v. Shepherd, 6 East, 14. See Bachellor v. Prest, 12 Pick. 406; Renshaw v. Triplett, 23 Mo. 213; Stafford v. Yeates, 18 Johns. 327; Bank of U. S. v. Goddard, 5 Mason, 366; Chapman v. Keene, 3 Ad. & El. 193; Jameson v. Swinton, 2 Camp. 373; Story on Bills, Sec. 304.

21 Pars. N. & B. 627; Thomson on Bills, 337. See Beale v. Parish, 20 N. Y. 407. 3 Story on Bills, Sec. 304; Bayley on Bills, 254; Chanoine . Fowler, 3 Wend. 173; Harrison v. Ruscoe, 15 L. J. Exch. 110; Cal. Civil Code, Sec. 3142.

43 Ad. & El. 193.

5 15 Md. 157.

6 Stanton v. Blossom, 14 Mass. 116.

§ 123. Notice by an agent.-Notice may be given by an agent, either in his own name or that of his principal.1 In this respect, a notary is the agent of the holder of a negotiable instrument. In case of a note given for collection, the party to whom it is intrusted is held to a strict liability for any failure to give notice. So banks are liable for failure to give notice of the dishonor of notes left with them for collection; they are bound to employ a person of sufficient competency and fidelity for protesting and giving notice.3

It should be remembered that by the common law it is no part of the duty of a notary to give notice, unless he is specially employed to do so; but usually notaries are constituted agents of a party for this purpose, and are then liable for any failure to give notice. And now, by statute in several of our States, it is incumbent on the notary to give notice.5

When a bank receives paper for collection in a distant place, and employs an agent to make protest or give notice, it is often a question whether, under such circumstances, the bank is liable for any default of its sub-agent. But, on general principles, one to whom is intrusted a duty, who employs an agent under him, is responsible for his acts: so the bank is therefore held liable; but it may show that, by a a well-understood custom and course of dealing in the mercantile community, this was the usual way

v.

1 Woodthorpe v. Lawes, 2 M. & W. 109; Rogerson v. Hare, 1 Jur. 71; Palmer Whitney, 25 Ind. 58.

2 Freedman's Bank v. Perkins, 7 Shep. 292; Bank of Missouri v. Vaughan, 36 Mo. 90; Allen v. Suydam, 20 Wend. 321; Bank of Utica v. Smith, 18 Johns. 230; Bank of Utica v. McKinster, 11 Wend. 475.

3 Smedes v. Utica Bank, 20 Johns. 384.

4 Harris v. Robinson, 4 How. U. S. 336; Bank of Rochester v. Gray, 2 Hill, 227. 5 In Alabama, it is incumbent on the notary to give notice "according to law." Rev. Code, Sec. 1083. By Pol. Code of California, Sec. 794, it is the duty of notaries, "when requested acceptance and payment of foreign, domestic, and inland bills of exchange or promissory notes, and to protest the same for non-acceptance and non-payment."

By statute, in Illinois, the notary is required to give notice to the maker and indorsers on the same day of protest, or within forty-eight hours after the time of protest. Rev. Stat. 1874, p. 721. In Iowa, it is provided: "The notary making demand may inform the indorser, or any party to be charged, if in the same town or township, by notice deposited in the nearest post-office to the parties to be charged on the day of demand, and no other notice shall be necessary to charge said party." Code 1873, Sec. 2095. In Louisiana, notice is required by the notary. Dig. Stat. 1870, Sec. 2539. So in Maine. Rev. Stat. 1871, p. 327 ; in Minnesota, 1 Bissell's Stat. p. 205; in New Jersey, Nixon's Dig. p. 771; in Nebraska, Gen. Stat. 1873, p. 494; in Mississippi, Act April 5th, 1872. Sec. 9.

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