give notice,' and a bank or other agent for collection should as a matter of duty give such notice.' And the rule holds good where there is a succession of indorsements for the same purpose; notice given from one to the other, as in the case of ordinary indorsers, is held to have been given according to established commercial usage."

§ 840. Possession of a bill or note by a notary is evidence of a right to protest it; and when a notice signed by a notary public is duly given, it is presumed to be done by the authority of the holder; and the notice will be sufficient if his name be affixed to it by a clerk authorized by him to serve notices." It is, however, no part of the notary's official duty to give such notices."

§ 841. An indorser who been discharged by the laches of the holder or subsequent parties, cannot afterwards take up the note or bill and give notice so as to charge prior parties; because all of them are discharged by the same want of diligence." It would, therefore, seem that the liability of the party to the instrument must be fixed or the notice given will be un629* availing. *And it has been held that a notice given by the first indorser to the drawer of a bill is not available as between the second indorser and the drawer, where the first indorser has not been charged with notice; on the ground that he was not obliged to take up the bill. On the other hand, it

Worden v. Nourse, 36 Vt., 757.

2 Bank of State of Mo. v. Vaughn, 36 Mo., 90.

Mead v. Engs, 5 Cowen R., 503; Freeman's Bank v. Perkins, 6 Shepley, 293; Warren v. Gilman, 5 id., 360; Crawford v. Branch Bank, 7 Ala.. 203; Eagle Bank v. Hathaway, 5 Metcalf, 212; Wynen v. Schappert, 6 Daly, 558; Howard v. Ives, 1 Hill, N. Y., 263; Colt v. Noble, 5 Mass., 167; Crocker v. Getchell, 23 Me., 392; Butler v. Duval, 4 Yerg., 265.

4 Warren v. Gilman, 17 Maine R. (5 Shep.), 360; Bank of Utica v. Smith, 18 John. R., 230.

5 Cowperthwaite v. Sheffield, 1 Sand. R., 416; Swayze v. Britton, 17 Kans.. 625; Crawford v. Branch Bk., 7 Ala., 205; Safford v. Wyckoff, 1 Hill, 11; Fulton v. McCracken, 18 Md., 258; Renick v. Robbins, 28 Mo., 339. Barker v. McKay, 2 How.. 66; Harris v. Robinson, 4 id., 336. Turner v. Leach, 4 Barn. & Ald., 451.

8 Bayley on Bills, 254, 256; 'Harrison v. Ruscoc, 15 M. & W., 231.

9 Ex parte Barclay, 7 Ves., 597. It is questionable whether this be not overruled by subsequent authorities; the party himself being duly notified, is not injured by the laches that might have been a good defense in an action brought by the second against the first indorser.

is laid down in broad terms "as universally true, that a party entitled as holder to sue upon a bill, may avail himself of the notice given in due time by any other party to it, against any other person upon the bill, who would be liable to him, if he, the holder, had himself given him due notice of the dishonor." It is, says Lord DENMAN, universally considered that the party entitled as holder to sue upon the bill may avail himself of notice given in due time by any party to it.2

A notice given by a party in possession of the bill, as banker, attorney or agent, is sufficient, though given in his own name; and a notice to bind a corporation as indorser is properly served on its general agent, who had indorsed the note in its name. So where a liquidating partner indorses a note on account of the late firm, service of a notice upon an agent employed by him in liquidating the affairs of the firm is good." A notice of dishonor, sent by mail to an indorser, not signed by any one, is not sufficient; but the name may be printed instead of being written.'

$842. Where the holder is not satisfied with the responsibility of his immediate indorser, his only safe course is to give notice to all the parties; and as he is only bound to give notice to the party indorsing the bill or note to him, it is prudent in each party who receives notice, to give prompt notice to those who stand behind him on the paper; for the holder may have omitted to notify them, and it may be inconvenient to prove that due notice has been given by him. Of course, the notice should be served or mailed by a person who will be a competent witness to prove the fact. Where the owner is dead, notice should be given by his personal representatives, and if there be no representative at the time of the maturity. of the note, the indorser will not be discharged provided no

1

1 Story on Bills, § 304. Notice from acceptor to drawer is sufficient. Brailsford v. Williams, 15 Md., 150.

2 Chapman v. Keane, 3 Ad. & Ellis, 193; ante, 476, 477.

* Idem; Woodthorpe v. Lawes, 3 Mees. & W., 109; 6 Shepley, 292: Worden v. Nourse, 36 Vt., 757.

* Bank of Auburn v. Putnam, 3 Keyes, 347; S. C., 1 Abb. Dec., 80.

5 Fassin v. Hubbard, 55 N. Y., 465.

* Walker v. State Bank, 8 Missouri, 704; Walmsley v. Acton, 44 Barb., 312; Chanoine v. Fowler, 3 Wend., 173; Klockenbaum v. Pierson, 16 Cal., 375.

'Bank of Cooperstown v. Woods, 29 N. Y., 545; S. C., id., 561. Bayley on Bills, ch. 7, § 2; ante, 623.

tice be given within a reasonable time after an appointment is made.'

630* § 843.

To whom should notice be given ?-In order to charge them, we have seen that it is necessary to give notice of non-payment to the drawer and indorsers of notes and bills. In respect to the drawer, there is a class of cases, to be presently considered, in which he is not entitled to notice, on the ground that he had no effects in the hands of the drawee and no right to expect that his draft would be honored. But in general, the indorser has nothing to do with the accounts between the drawer and drawce, and is therefore entitled to notice of dishonor, without regard to the particular relation existing between them."

6

A person who indorses an absolute guaranty of payment on the back of a negotiable promissory note, is not entitled to notice of dishonor. So where a party writes his name on the back of a note, but with the understanding and agreement that he is to be liable as surety only, he is not entitled to notice of non-payment. And it is well settled that one who transfers a bill without indorsement, is not, by the law merchant, entitled to notice, as where a draft is delivered by a debtor to his creditor on account of the indebtedness." A guaranty of payment is a contract quite different from that which is implied by the act of indorsing a negotiable note or bill: it is an unconditional undertaking that the note or bill shall be paid. And where a person transfers a note of a third person payable to bearer without indorsing it, to his creditor, the same not being received in payment and discharge of his debt, all that he can reasonably demand is that the parties liable thereon be duly charged.'

1 White v. Stoddard, 11 Gray, 38; 1 Parsons N. & B., 444, 559.

2 Couch v. Sherrill, 17 Kans., 622.

31 Denio R., 367; 2 Ala., 368; 21 Pick., 327.

4 Barton v. Baker, 1 Serg. & Rawle, 334; 7 Mass., 452.

5 Hough v. Gray, 19 Wend., 202; see also Dean v. Hall, 17 Wend. R., 214, and cases there cited.

445.

6 Iser v. Cohen, 57 Tenn., 421.

1 Van Wart v. Smith, 1 Wend., 219; Van Wart v. Woolley, 2 B. & C.,

8 20 John. R., 365; 5 Wend., 307; Brown v. Curtiss, 2 Comst., 225.

Jones v. Savage, 6 Wend., 658; 5 John. R., 68; Dayton v. Trull, 23

§ 844. Until the appointment of an assignee in bankruptcy the bankrupt himself, as trustee of his estate for his creditors, is the proper person to be notified of the dishonor of notes or bills on which he is indorser, and is competent to waive demand and notice.' When a note is made payable to the order of two or more persons who are not partners, and indorsed by them, the notice of d shonor must be given to each; and if one of them die before the note falls due, the holder must be careful to *charge the estate of the *631 deceased indorser, or else he will not be entitled to recover thereon against the other. In the case of a partnership the interest is not only joint, but each member is a general agent of the concern; and hence notice to one is notice to all.' And it matters not that there has been a dissolution.* So the same rule holds, although the dissolution be the result of war, and one of the partners be within the hostile territory." It has been held, however, that where one of the partners resides at a distance and another at the place of protest, the notice must be given to the latter."

845. If an indorser be dead, at the maturity of a note, and there be executors or administrators at that time known to the holder, notice must be given to them; for they represent the testator or intestate, and are as fully entitled to notice as he would be, if alive.' But where the death of the indorser is

Wend., 345. The guarantor stands in the light of a surety, and may be discharged by the negligence of the holder. Reynolds v. Douglass, 12 Peters. 497.

1 Ex parte Treas. Nat. Bk., 16 Bank. Reg., 397.

2 Willis v. Green, 5 Hill R., 232; Shephard v. Hawley, 1 Conn. R., 367; Bank of U. S. v. Bierne, 1 Grat., 234; Hubbard v. Matthews, 54 N. Y., 43; Boyd v. Orton, 16 Wis., 495; People's Bank v. Keech, 26 Md., 521; Wood v. Wood, 1 Har., 429.

Notice of non-payment to one of several joint drawers who are not partners, is not notice to the others. Miser v. Trovinger, 7 Ohio, N. S., 281.

* Idem; and Bank of Chenango v. Root, 4 Cowen R., 126; 4 S. & M., 749; People's Bk. v. Keech, 26 Md., 521; Gowan v. Jackson, 20 Johns., 176; Story on Bills, § 299, 305.

4 Fourth Nat. Bk. v. Henschuh, 52 Mo., 207; Brown v. Turner, 15 Ala. N. S., 832; Coster v. Thomason, 19 id., 717; Slocum v. Lizardi, 21 La. Ann., 355; Hubbard v. Matthews, 54 N. Y., 50.

5 Hubbard v. Matthews, 54 N. Y., 50.

Hume v. Watt, 5 Kans., 34; post, 632.

'Oriental Bank v. Blake, 22 Pick., 206; Goodnow v. Warren, 122 Mass.,

not known, as where he dies at sea and the news of his death does not reach the holder until some time after the note has fallen due, it is sufficient to leave the notice for him at his residence or dwelling-house.' So when the holder knows the indorser to be dead, but does not know that he left a will, or whether any administrators have yet been appointed or not, the notice may be served by leaving it at his late residence for his executors or administrators; so where no personal representatives of a deceased indorser had been appointed notice left at his residence with his son-in-law was held sufficient; but notice sent to one who is not at the time au administrator, although subsequently appointed such, is not sufficient. In cases where the service may be made by mail, it is sufficient to address the notice to the executor or administrator of the deceased by name, or to the indorser, if he is not known to be deceased."

§ 846. Where a note or bill is indorsed by a firm, and one of the members of it dies before it falls due, it is sufficient to give notice of dishonor to the surviving partner; for the survivor represents the firm, and is legally answerable as such for its debts. And though the partnership has been dis

solved by mutual consent, notice to one of the members, 632* if given before the fact of dissolution has been made

83; Boyds' Adm'rs v. City Sav'gs Bk., 15 Gratt., 501; and notice to one of several personal representatives will be sufficient. Beals v. Peck, 12 Barb., 245; Lewis v. Blakewell, 6 La. Ann., 359.

1 Merchants' Bank v. Birch, 17 John. R., 26; Stewart v. The Executors of Eden, 2 Caines' Rep., 121; Linderman v. Guldin, 34 Penn. State, 54.

2 Cayuga Co. Bank v. Bennett, 5 Hill R., 236; Goodnow v. Warren, 122 Mass., 82.

3 Weaver v. Penn., 27 La. Ann., 129.

4 Goodnow v. Warren, 122 Mass., 82.

5 Barnes v. Reynolds, 4 How. (Miss.), 114; Dabney v. Stidger, 4 Smedes & M., 749; Planters' Bank v. White, 2 IIumph., 112. Notice addressed to the "legal representative" of the deceased indorser, to the place of his last residence, is good. Pillow v. Hardeman, 3 Humph., 538; the holder not knowing the name of the representative; see also Boyd's Adm'rs v. City Savings Bank, 15 Gratt. (Va.), 501; Smalley v. Wright, 40 N. J. L., 471; Maspero v. Pedisclaux, 22 La. Ann., 227.

Cooke v. Bank of Tennesee, 9 Humph., 51; Dabney v. Stidger, 4 Smedes & M., 749; 5 Hill R., 232; Goelet v. McKinstry, 1 John. Cas., 405; 2 id., 374; Grant v. Shurtel, 1 Wend., 148; Hubbard v. Matthews, 54 N. Y., 50; Slocum v. Lizardi, 21 La. Ann., 355.