28 properly given by the agent in his own name, as is also provided in the statute. While the general rule is that the party giving notice of dishonor should be a party to the instrument, or some one acting under the authority of such party, yet liberal presumptions will be indulged in, in favor of such authority when the contrary is not made to appear. 29 b. When agent may give notice; statutory rule.- The Negotiable Instruments Law provides: "Where the instrument has "been dishonored in the hands of an agent, he may either himself 66 66 give notice to the parties liable thereon, or he may give notice to "his principal. If he give notice to his principal, he must do so "within the same time as if he were the holder, and the principal upon the receipt of such notice has himself the same time for giving notice as if the agent had been an independent holder." 30 This is the same as a provision of the English Bills of Exchange Act,31 and is in all respects declaratory of the rule of the law merchant.32 66 § III. Benefits of notice. a. Where notice is given by or on behalf of holder; statutory provision. The Negotiable Instruments Law provides that: "Where notice is given by or on behalf of the holder, it inures for "the benefit of all subsequent holders and all prior parties who "have a right of recourse against the party to whom it is given." 38 This is substantially the same as a provision of the English Bills of Exchange Act.34 It is declaratory of the general rule. In an country banker's London agent presented it for payment, and gave him due notice of its dishonor. The country banker on the day after the receipt of such notice gave notice to his customer, who in turn gave a similar notice to his indorser. It was held that the indorser had received due notice. See also Code v. Bayley, 12 M. & W. (Eng.) 51; Goodall v. Polhill, 14 L. J. C. P. (Eng.) 146. 32. Farmers' Bank of Bridgeport v. Vail, 21 N. Y. 485; Eagle Bank v. Hathaway, 5 Metc. (Mass.) 212; Wamesit Bank v. Buttrick, 11 Gray (Mass.), 387. 33. Neg. Inst. L. (N. Y.), § 163. For same section in statutes of other States see Appendix. 34. English Bills of Exchange Act, 1882, § 49 (3). early New York case,35 which is cited by Mr. Chalmers as the basis of this rule, it was held that a notice given by the holder of a note or bill to the several indorsers inures to the benefit of the indorsees, or preceding parties; so that the first indorser of a note who has received notice of its nonpayment from the holder, but not from the second or subsequent indorsers, is liable to such subsequent indorser in the same manner as if the notice had been received from him. Although notice of nonpayment, given by a holder of a note to an indorser, inures to the benefit of the other parties thereto, an inability to learn the proper place for giving such notice which excuses the holder is not available to another indorser who possesses the necessary information.36 If an indorser receive notice from any one who is a party, he is liable to any subsequent indorser though he may have received no notice from him.37 b. Where given by or on behalf of party entitled to give notice; statutory rule. The Negotiable Instruments Law provides that: "Where notice is given by or on behalf of a party entitled to give "notice, it inures for the benefit of the holder and all parties sub"sequent to the party to whom notice is given." 38 The English Bills of Exchange Act contains a similar provision.39 § 112. Sufficiency and form of notice. a. When notice sufficient. (1) Statutory provision.—The Negotiable Instruments Law contains the following provision: "A written notice need not be signed, and an insufficient written "notice may be supplemented and validated by verbal communi"cation. A misdescription of the instrument does not vitiate the "notice unless the party to whom the notice is given is in fact "misled thereby." 40 The English Bills of Exchange Act contains a similar provision." This is in effect declaratory of the general rule.42 35. Stafford v. Gates, 18 Johns. (N. Y.) 327. 36. Beale v. Parish, 20 N. Y. 407. 37. Mead v. Engs, 5 Cow. (N. Y.) 303. In the case of Jordan v. Ford, 7 Ark. 416, it was held that notice from the holder of a note will inure to the benefit of every other party who stands between the persons giving the notice and the person to whom it is given. 38. Neg. Inst. L. (N. Y.), § 164. For same section in statutes of other States see Appendix. 39. English Bills of Exchange Act, 1882, § 49(4). 40. Neg. Inst. L. (N. Y.), § 166. For same section in statutes of other States see Appendix. 41. English Bills of Exchange Act, 1882, § 49 (7). 42. Holditch v. Canty, 4 Bing. N. C. (Eng.) 411. In this case notice was given by a holder to an indorser, of the dishonor of a bill by an executor, in these terms: "Messrs. H. are surprised to hear that Mr. G.'s bill was returned to the holder unpaid." This (2) Misdescription of instrument and mistake.-A misdescrip tion of the note will not render the notice of dishonor insufficient if it does not mislead the person to whom the notice is given, and if it so designates and distinguishes the note as to leave no reasonable doubt in his mind what note was intended.43 The variance must be such as to convey no sufficient knowledge to the party of the particular note which has been dishonored. If it does not mislead him, if it conveys to him the real fact without any doubt, the variance cannot be material, either to guard his rights or avoid his responsibility." A failure to state the name of the owner or holder of the instrument,45 a misstatement in the amount, the omission of the date and time of payment, or the fact that the was followed by a visit from the indorser to the holder on the same date, in which he expressed his regret, and promised that he would write to the other parties, by whom or by himself the holder should be paid, it was held sufficient to render him liable. 43. Gilbert V. Dennis, 3 Metc. (Mass.) 495; Gates v. Beecher, 60 N. Y. 518, 19 Am. Rep. 207. 44. Variance not material unless party notified is misled.- Bank of Alexandria v. Swann, 9 Pet. (U. S.) 33, 9 L. Ed. 40. The following cases are also to this effect: Alabama.- Crawford V. Branch Bank of Mobile, 7 Ala. 205; Moorman v. Bank of Alabama, 3 Port. 353; Saltmarsh v. Tuthill, 13 Ala. 390. Connecticut.- Kilgore v. Bulkley, 14 Conn. 362; Gill v. Palmer, 29 Conn. 54. Florida.- Spann v. Baltzall, 1 Fla. 301, 46 Am. Dec. 346. Indiana.- Brown v. Jones, 125 Ind. 375, 25 N. E. 452, 21 Am. St. Rep. 227. Maine.- King v. Hurley, 85 Me. 525, 27 Atl. 463; Wood v. Watson, 53 Me. 300; Waterman v. Vose, 43 Me. 504. Maryland.- Sassar V. Farmers' Bank, 4 Md. 409. Massachusetts.- Smith v. Whiting, 12 Mass. 6, 7 Am. Dec. 25. Michigan. Snow v. Perkins, 2 Mich. 238. Missouri.- Townsend v. Heer Dry Goods Co., 83 Mo. 503; Renick v. Robbins, 28 Mo. 339. New Jersey.- Dodson v. Taylor, 56 N. J. L. 11, 28 Atl. 316. 47 46 New York.- Bank of Cooperstown v. Woods, 28 N. Y. 545; Hodges v. Shuler, 22 N. Y. 114; Youngs v. Lee, 12 N. Y. 551; Cook v. Litchfield, 9 N. Y. 279; Cayuga County Bank v. Warden, 1 N. Y. 413; Bank of Rochester v. Gould, 9 Wend. 279; Northup v. Cheney, 27 App. Div. 418, 50 N. Y. Supp. 389. Ohio.- Powell v. State Bank of Ohio, 1 Disn. 269. Pennsylvania.—Tobey v. Lenning, 14 Penn. St. 483. Tennessee. Myers v. Bank of Tennessee, 3 Head, 330; Ross v. Planters' Bank, 5 Humph. 335. 45. Marine v. United States Bank, 11 Wheat. (U. S.) 431, 6 L. Ed. 512; Brown v. Jones, 125 Ind. 375, 25 N. E. 452, 21 Am. St. Rep. 227; Shrieve v. Duckham, 1 Litt. (Ky.) 194; Brady v. Davis, 26 Me. 45; Shed v. Brett, 1 Pick. (Mass.) 401, 11 Am. Dec. 209. 46. Bank of Alexandria v. Swann, 9 Pet. (U. S.) 33, 9 L. Ed. 40; King v. Hurley, 85 Me. 525, 27 Atl. 463; Snow v. Perkins, 2 Mich. 238. 47. Shelton v. Braithwaite, 7 M. & W. (Eng.) 436; Youngs v. Lee, 12 N. Y. 551; Tobey v. Lenning. 14 Pa. St. 483; Ross v. Planters' Bank, 5 Humph. (Tenn.) 335. Omission of time of payment.— In the case of Gates v. Beecher, 60 N. Y. 518, 10 Am. Rep. 207, the notice did not mention the time of payment, otherwise than as it might possibly be inferred from the naming of the day on which it was alleged to have been presented for payment. It was held that the absence of a statement, even at the same time with an wrong person was described as the last indorser, 48 are not such defects as will mislead the person to whom the notice is given and are, therefore, immaterial. The object of the notice is simply to inform the indorser of the nonpayment by the maker, and that he is held liable for the payment of the note, and if the notice accomplishes this object it is sufficient, though it misdescribe the note in some particulars.49 It has been held, however, that a notice of dishonor of a promissory note must name the maker or it will not be sufficient to change the indorser.50 b. Form of notice.-(1) Statutory provision.- The Negotiable Instruments Law provides as follows: "The notice may be in 66 writing or merely oral and may be given in any terms which sufficiently identify the instrument, and indicate that it has been "dishonored by nonacceptance or nonpayment. It may in all "cases be given by delivering it personally or through the mails." 51 A similar provision is contained in the English Bills of Exchange Act. 52 (2) Notice may be oral.- Independent of the provisions of the statute a notice of dishonor may be either verbal or in writing. It is, however, better to give the notice in writing, because thereby the evidence of it will be better preserved in case the fact becomes a matter of dispute." absence of a statement of the date and keeping no bill-book, would not, by amount, there being no evidence of any other note to which the notice could apply, was not a fatal omission. 48. Myers v. Bank of Tennessee, 3 Head (Tenn.), 330. 49. Snow v. Perkins, 2 Mich. 238, 243. 50. Name of maker must be included. Home Ins. Co. v. Green, 19 N. Y. 518, 75 Am. Dec. 361. In this case the notice contained a description of the note in the following terms: means of such a notice, ordinarily be able to identify the paper on which he was sought to be charged; nor would one who indorsed and negotioted his own business paper, if his transactions of that kind were responsible, be much more likely to know what particular paper had been dishonored." 51. Neg. Inst. L. (N. Y.), § 167. For same section in statutes of other States see Appendix. 52. English Bills of Exchange Act, § 49 (5). See also the following English cases as to the sufficiency of a notice of dishonor: King v. Bickley, "A noted dated, Buffalo, June 18, 1855, for $1,151, drawn by payable at three months date, and indorsed by you," etc. The court said: 'I am of the opinion that the notice was not sufficiently certain. The most descriptive feature of a note is the name of the maker. The date, amount, and time of the payment, and the statement that the party served with the notice was an indorser, might or might not recall it to his recollection. One 53. Martin v. Brown, 75 Ala. 442; indorsing frequently for the accom- Thompson v. Williams, 14 Cal. 160; modation of different persons, and Pierce v. Schaden, 5 Call (Va.), 406; 2 Q. B. (Eng.) 419; Bailey v. Porter, 54 (3) General rule as to sufficiency of notice.- Justice Story, in speaking of the form of the notice of dishonor to be given or sent to the indorser, says: "No precise form of words is necessary to be used upon such occasions; still, however, it is indispensable that it should either expressly, or by just and actual implication, contain in substance the following requisites: (1) A true description of the note so as to ascertain its identity; (2) an assertion that it has been duly presented to the maker at its maturity and dishonored; (3) that the holder or other person giving notice looks to the person to whom the notice is given for reindorsement and indemnity." The notice of dishonor is not sufficient unless it expressly or by implication shows that the instrument was presented for payment, and payment thereof was refused.55 It must show that the presentment for payment was made at the proper time, and, therefore, a notice which has no date, which states that the note has been "this day presented for payment," and payment refused, is defective. 56 The word " protest or protested," used in a notice of dishonor, imports the taking of such steps as are requisite to charge the indorser or drawer of a bill with his demand and refusal.57 66 Merrit v. Woodbury, 14 Iowa, 299; Ticonic Bank v. Stackpole, 41 Me. 321, 66 Am. Dec. 246; First Nat. Bank v. Hatch, 78 Mo. 13; Cuyler v. Stevens, 4 Wend. (N. Y.) 566. cient which properly described the note and which showed upon its face that the note was due ninety days from a specified date. 57. Notice must show presentment and refusal to pay.- Beals 54. Story on Promissory Notes, § 348; Artisans' Bank v. Backs, 12 v. Peck, 12 Barb. (N. Y.) 245. Pet. (U. S.) 100, 104. In this case the court said: "It 55. Notice must state that pre- seems to me, therefore, as the sentment was made. In the case of Arnold v. Kenlock, 50 Barb. (N. Y.) 44, it was held that a notice giving the date of the maturity of the note, not properly describing the instrument, but merely stating that it had not been paid, and requesting payment, was not sufficient to charge the indorser. See also Littlehale v. Maberry, 43 Me. 264; Page v. Gilbert, 60 Me. 485; Armstrong v. Thurston, 11 Md. 548; Pickham v. Macy, 9 Metc. (Mass.) 174; Fisk v. Morse, 16 N. H. 271; Porter v. Thom, 167 N. Y. 584, 60 N. E. 1119; Townsend v. Lorain Bank, 2 Ohio St. 345. 56. Wynn v. Alden, 4 Den. (N. Y.) 163. But in the case of the Artisan's Bank v. Backus, 36 N. Y. 100, an undated notice of protest was held suffi word 'protest' and its preterit 'protested,' are words of well-known signification among business and commercial men, when used in relation to commercial paper, and are unnecessarily understood to mean the taking of such steps in the case of a bill of exchange, as are requisite to charge the indorser and drawer, except the notice; that is payment and refusal; that when used in reference to a promissory note, the same force and meaning attaches to them as would when used in relation to a bill of exchange; and that the import and demand and refusal has charge in the one case as the other." See also Young v. Bennett, 7 Bush (Ky.), 474; First Nat. Bank v. Hatch, 78 Mo. 13; Fox v. Newell, 1 Ohio Dec. 378. In the case of Cook v. Litchfield, 5 Sandf. |