time he drew, made, or indorsed the instrument, unless he specifies thereon the post-office where he received his letters, and where there are several post-offices in the same town, it is not necessary to direct it to the post-office nearest the residence of the party. (Remer v. Downer, 23 Wend. 620.)

Where the holder of a note was apprised before it fell due that one of the indorsers was dead, and that his will had been proved, and was recorded in the surrogate's office, it was held, that a notice of non-payment addressed to the deceased indorser by mail, and not to his personal representatives, was insufficient to charge his estate. (Cayuga Bank v. Bennett, 5 Hill, 236.)

A note was payable at the plaintiff's bank, in the town of W., where the indorser did business, and received his letters. The indorser, however, resided in an adjoining town, where notice of protest was sent by mail; held sufficient, it not appearing that the plaintiff knew of any other place where the indorser received his letters, and the indorser not having specified where he wished notice of dishonor of the note to be left or sent. (Seneca County Bank v. Neass, 3 Comstock, 443.)

The cashier of a bank who indorses paper money for collection is a party to the same, and a notarial certificate which stated that, upon the next day after presentment, notices of protest, addressed to the drawer and indorsers respectively, were inclosed in an envelope and sent to the cashier, was held sufficient evidence of the protest in respect to all the parties, and of notice thereof to the cashier. (Bank of United States v. Davis, 2 Hill, 451.)

Where the drawer of a bill is partner of the house or firm upon which it is drawn, it is not necessary for the holder to prove notice of dishonor. (Gowan v. Jackson, 20 Johnson's R. 99.)

Where the indorsers and acceptors are members of the same firm, no notice of dishonor is necessary. (Bank of Rochester v. Monteath, 1 Denio, 402.)

If one of two co-indorsers, being joint payees of a note, but not partners, dies before maturity of the note, notice of dishonor must be given to the survivor, and to the personal representatives of the deceased, in order to charge the survivor. (Willis v. Green, 5 Hill, 232.)

Where the payee of a note not negotiable indorses in blank, notice to him of non-payment is not necessary. He stands to his indorsee in the relation of principal, and not of surety, and has no right to insist upon a demand of the maker and notice of non-payment. (Seymour v. Van Slyck, 8 Wend. 404.)

Notice of presentment and non-payment of a check is necessary, before an action can be brought on it against the drawer. (Harker v. Anderson, 21 Wend. 372.)

But it has been decided by the Court of Appeals in New York, in the case of Bowen v. Newell, that checks upon a bank made payable at a day different from that on which they are dated, are to be treated as bills of exchange, and as such they are entitled to three days' grace. To avoid protest for non-acceptance, and to insure payment on the day, they should be drawn with the words, "Without grace, acceptance waived."

The instrument in the above case was as follows: :

"New York, Oct. 5, 1849.

"Cashier of Thompson Bank:- Pay Zenas Newell, or order, two thousand dollars on the 12th instant.

The Thompson Bank was in the State of Connecticut, the instrument was presented there for payment on the 12th of October, and, payment being refused, was on the same day protested, and due notice of such protest was given to the indorser. It was proved at the trial, that it was the uniform usage of the banks in Connecticut, and of the above-named bank, to pay such checks on the certain day named, and, in case of nonpayment, to have them protested on that day.

The Court of Appeals held, that this instrument was a bill of exchange, and subject to days of grace; and that evidence of the usage of the banks in Connecticut was not admissible to show that, by the law of that State, the instrument would receive a different construction from that which would be given to it in New York. The demand of payment and the notice to the indorser were therefore held premature, and the indorser was held discharged.

Notice to and by an Agent, and his Liability.

Notice to a regularly authorized agent will be notice to the principal. But telling a man's attorney that a bill is dishonored, is no notice, unless the attorney has more than the usual powers. So where the name of an indorser on a note is signed by another person, as his attorney, under a power to indorse notes for him, a notice to the attorney is not sufficient to charge the indorser, the authority to indorse not being of itself an authority to receive notices. (Richards v. Morgan, 16 Martin, 89.)

Where an agent draws a bill in his own name, but for account of his principal, notice must be given to the agent, who is the drawer. Giving notice to the principal, who is not a party to the bill, is not sufficient. (Grosvenor v. Stone, 8 Pick. 79.)

But where a bill was drawn by the master of a ship, on account of the owners and by their authority, but in his own name, it was held that the owners were liable on being duly notified of the dishonor of the bill. (Wallace v. Agry, 4 Mason, 336.)

If an agent indorses a note or bill in the name of another, without authority, notice must be given either to the ostensible agent or the princi pal. (Clay v. Oakley, 17 Martin, 137.)

Agents for collection are holders for the purpose of giving notice of non-payment, or receiving the same; but such an agent, like any holder, is not bound to give notice to all the prior parties, but may give notice to his immediate indorser, who is to give notice to the other prior parties. (Mead v. Engs, 5 Cowen, 303; Bank of the U. S. v. Davis, 2 Hill, 451 Howard v. Ives, 1 Hill, 263.)

Agents who receive bills before maturity for collection are held to strict vigilance in making presentment for acceptance, and giving notice

of non-acceptance, and if chargeable with negligence, are subject to the payment of all the damages sustained by the owner. (Allen v. Suydam, 20 Wend. 321.)

A demand of payment of a note by a notary, or by a person having a parol authority for that purpose, or the lawful possession of the note, is sufficient; and the notary of the person authorized to make demand may give notice of dishonor. (Bank of Utica v. Smith, 18 Johns. 230.)

Where a bank receives a note for collection, it is bound to give notice of non-payment to the indorsers, and neglect to do it makes the bank liable. (Bank of Utica v. M'Kinster, 11 Wend. 475.)

Where a bank receives a note for collection, it is bound to employ a person of sufficient competency and fidelity for protesting the same. (Smedes v. Utica Bank, 20 Johns. 384.)

And it has been decided since in New York, that the bank is answerable for a mistake made by a notary employed by the bank in giving proper notice on the dishonor of a bill. The Court of Errors decided that a bank receiving for collection a bill of exchange, drawn in New York upon a person residing in another State, is liable for any neglect of duty occurring in its collection, whether arising from the default of its officers here, its correspondents abroad, or of agents employed by such correspondents.

This liability may be varied, however, either by express contract, or by implication arising from general usage in respect to such paper. It is competent, therefore, for the bank to show an express contract, vary. ing the terms of its liability, or, in the absence of a judicial determination upon the point, to show that, by the usage and custom of the place, a bank thus receiving foreign paper is liable only for its safe transmission to some competent agent, and is not responsible for the acts or omissions of such agent, or of any subordinates employed by him.

The inquiry, however, in such case, is not as to the opinion of merchants, however general, as to the law of the case, but as to the usage and practice in respect to such transactions, or the general understanding of merchants as to the nature of the contract evidenced by their acts, so as to enable the court to give the contract a correct interpretation.

Where a debt was lost by the omission of a notary to give notice of the non-acceptance of a bill presented before maturity, it was held not to excuse a bank which had received the same for collection, that, by the law merchant of the place where the bill was presented, notice of nonacceptance was deemed unnecessary; but that, on the contrary, as the lex loci contractus governed in a case like it, it was the duty of the bank to have given the necessary instruction to its correspondents. The omission to give notice of non-acceptance happening through the default of a commissioned public officer, a notary, does not vary the rights of the parties; pro hac vice, he acted merely as the agent of his employers, and not in his official capacity. (S. and M. Allen v. Merchants' Bank, N. Y. decided in the Court of Errors.)

In a recent case (Warren Bank v. Suffolk Bank) decided by the Supreme Court of Massachusetts, at the March Term, 1853, but not yet reported, in which the plaintiffs sought to recover of the defendants for

negligence, in not duly demanding of the maker payment of a note, left with them by the plaintiffs for collection, and where the note in question was placed by defendants in the hands of a notary public, and all the alleged negligence was on his part, it was held as follows:

:

"Where the nature of the business requires the employment of a subagent, the bank with which a note or bill is left for collection is not responsible for the neglect or default of such agents. This rule was sanctioned and applied by the court in Fabens v. Mercantile Bank, 23 Pick. 382, and Dorchester and Milton Bank v. New England Bank, 1 Cush. 177. The question that arises in the present case is, whether the duty of making a proper demand on the promisors of a note left for collection is one that devolves wholly upon the collecting bank, or one that may justify the appointment of a sub-agent, and whether, upon showing due diligence and fidelity in the selection of such sub-agent, the further responsibility for his defaults rests upon the sub-agent alone.

66

Upon this point there has been some difference of opinion entertained by different judicial tribunals. The cases cited from New York are supposed to be adverse to such exemption from liability for the defaults of a notary public, to whom the note or bill has been committed by the collecting bank, for the purpose of demand and protest.

"Other legal tribunals have held that such delivery of the note to a competent notary public was a case of sub-agency, and without further responsibility. (Baldwin v. Bank of Louisiana, 1 Louis. Ann. Rep. 13; 4 Wharton, 103.)

"But all that is necessary to decide in the present case is the question of the competency and effect of certain evidence offered by the defendants to show the usage of the banks in Boston, as to the mode of making a demand in case of the non-payment of notes sent to them for collection.

"It was admitted by the courts of New York, that the collecting bank would not be chargeable for the default of a sub-agent, if there had been any understanding or agreement, express or implied, that the note was to be transmitted to a sub-agent for collection. The effect to be given to the usage of banks was particularly declared by this court in the cases of Dorchester and Milton Bank v. New England Bank, supra, and Chicopee Bank v. Eager, 9 Met. 583.

"In the present case the defendant offered to show that it was the inva riable usage of the banks in Boston, including the Suffolk Bank, where notes have been sent to them for collection by other banks, if such notes were not paid at the proper time, to place them in the hands of a notary public for demand and protest, and that they had charged the plaintiffs, and the plaintiffs had paid, the fees of the notary in such cases.

"This evidence of the usage and course of business was proper, and ought to have been admitted. Those dealing with the bank, and especially the plaintiffs, as to whom knowledge of the course of business was shown to exist, are bound by it, and it would authorize a jury to find, if necessary, an implied agreement or assent to the appointment of such notary public as a sub-agent for the making a demand and protest, requiring only on the part of the collecting bank due diligence and care in the selection of a proper notary.

"This evidence was excluded as immaterial, and for this cause the verdict is to be set aside and a new trial had."

Where a bank receives a note for collection, it is bound to use reasonable skill in making the collection, and for that purpose is bound to make a reasonable demand on the promisor, and in case of dishonor to give due notice to the indorsers, so that the security of the note shall not be lost or essentially impaired by the discharge of the indorsers. As an agent, such bank is bound to the use of reasonable skill and ordinary diligence.

In general, the rules of law in regard to the presentment of bills of exchange and promissory notes for payment, and for giving notice to indorsers, in case of dishonor, are so plain and simple, so well known by notaries public, cashiers of banks, attorneys, and brokers, that any failure to comply with them, by an agent acting in behalf of another, would carry with it such proof of either want of skill or want of diligence, as to render him liable to his principal. It is, therefore, often laid down in general terms, that where the holder of a bill or note has lost his remedy, by these means, against a responsible party, and thereby sustained damage, he has his remedy against his agent.

But an agent is not liable for injuries that are caused by his mistake in any doubtful matter of law, or when the law depends on statute provisions so recently passed as not to be generally known, or on decisions of courts, either not promulgated at the time, or so recently given as not to be generally known among business men. (Mechanics' Bank at Baltimore v. Merchants' Bank at Boston, 6 Met. 13, 25, and 27.)

It is no part of the duty of a notary to give notice of protest, and the certificate of a foreign notary is no evidence of such notice. (Bank of Rochester v. Gray, 2 Hill, 227.)

The notarial certificate (in New York), to satisfy the statute, must show a presentment for payment by the notary himself. If it state that he caused it to be presented, it is inadmissible. (The Onondaga County Bank v. Bates, 3 Hill, 53; Warnick v. Crane, 4 Wend. 460.)

In this case, the court say, "The duties of a notary in presenting promissory notes and bills of exchange cannot be performed by his clerk or a third person. So in Vandewall v. Tyrrell (Mood. & Malk. 87), where a clerk presented the bill and afterwards drew up the certificate of protest, which was signed and sealed by the principal in the usual form, Lord Tenderden said it was a void protest."

Notice in Case of Guaranty.

If there is a guaranty on a bill or note, it is not absolutely necessary, as in case of an indorser, to give to the guarantor immediate notice of the dishonor of the bill or note, but it is expedient and advisable to do so. It is only incumbent upon the guarantee to make a proper demand of the maker of the note, and upon his default, to give notice thereof to the guarantor within a reasonable time afterwards. What is reasonable time depends upon the circumstances of each case, and is governed by the consideration, whether the guarantor has suffered any injury by the want