278. By whom notice is to be given.-The notice may be given by the holder or his agent. It is not material whether the one or the other gives the notice. Under this rule the notary employed is an agent, which fact may be inferred from his acting. The cashier of a bank holding for collection is an agent of the bank to give notices.' The indorsee for collection has been called also an agent under this rule; but as we have elsewhere demonstrated, a bank holding paper for collection is a bailee, and therefore an actual holder, not an agent. Notice given by the acceptor or maker, as agent of the holder, inures to the benefit of other parties to the bill. The word “holder" includes any one through whose hands the bill or note has passed, even an assignor without indorsement. Each one of them may give notice to all or any parties prior to themselves.10 In the last section was necessarily considered the giving of notices by successive obligors." We saw that an agent could give notice to his principal instead of sending notices,12 or he might give notice himself in his own name 13 or in his principal's name." The holder can give notice to any or all the prior parties.15 Each indorser must take precaution to see that all prior parties whom he desires to hold are See Jarnagin v. Stratton, 95 Tenn. 619, as to the effect of a statute making all joint obligations joint and several. It does not change this rule. 1 Burke v. McKay, 2 How. 66; Harris v. Robinson, 4 How. 336. 2 See cases in last note. 3 Burbank v. Beach, 15 Barb. 326. See Payne v. Patrick, 21 Tex. 680. 4 State Bank v. Vaughan, 36 Mo. 91. 5 See § 171, ante, and Manchester Bank v. Fellows, 28 N. H. 302. 6 Union Bank v. Grimshaw, 15 La. 321; Brailsford v. Williams, 15 Md. 150. But the allegation must be that the maker or acceptor acted as agent of the holder, and acted in due time. Sebree Deposit Bank v. Moreland, 96 Ky. 150. 7 See cases in last note. 8 Glasgow v. Prattle, 8 Mo. 336; West River Bank v. Taylor, 34 N. Y. 128; Stafford v. Yates, 18 Johns. 327. 9 He would be on the same footing as a holder to whom the note was unindorsed. See Pate v. State Bank, 3 Ind. 176. 10 See preceding section. 12 See last section. 13 See note 17 to preceding section. 14 See § 270, ante. 15 See preceding section. notified,16 unless a statute should change the rule." Notice to a prior indorser from the holder inures to the benefit of the subsequent indorser,18 and notice by a subsequent to a prior indorser inures to the benefit of the holder.19 It has been held that notices to all the prior parties properly addressed, inclosed in a letter to the last indorser, will hold all the prior indorsers to the holder, although the last indorser never received the letter, and the letter was lost in the mail.20 Other authority seems to require that the notices be actually transmitted with proper diligence to the prior indorsers. This modification is correct to this extent, that no intervening party be guilty of laches, and therefore the first statement of the rule is undoubtedly correct, even if the holder had knowledge as to the residences. If, however, the last indorser received the letter it must appear that he remailed or served the notices,22 either to his prior indorser or the parties separately, and the same rule as to miscarriage in the mail would apply. All the cases in the preceding section should be consulted in connection with this section. Notices given by those who are strangers to the paper are 16 See preceding section. But if a subsequent party not notified gives notice to a prior party, the notice does not inure to the other parties to the paper. Brown v. Ferguson, 4 Leigh, 37, semble. This decision is wrong. The rule ought to be that as soon as it appears that the holder mailed the notice under cover to the last indorser, then the indorser should be called upon to show that he did not receive it, and to show laches. See notes 20 and 21, and Stafford v. Yates, 18 Johns. 327. See note 29 to preceding section. 18 See preceding section. 19 See preceding section. Gray, 387. Due diligence had been used to notify the prior parties. If the notices had not been lost, then the laches of an intervening holder would defeat recovery. Farmers' Bank v. Turner, 2 Litt. 13; Holland v. Turner, 10 Conn. 308. 21 See Aldine Mfg. Co. v. Warner, 96 Ga. 370; Stix v. Matthews, 63 Mo. 371; Van Brunt v. Vaughan, 47 Iowa, 145. 22 Renshaw v. Triplett, 23 Mo. 213; Ohio Life Ins. Co. v. McCague, 18 Ohio, 54; Holland v. Turner, 10 Conn. 308. 23 There is no doubt that a notice properly mailed by a proper person is notice. wholly void; but a liberal presumption will be indulged in favor of the authority of the giver of notice.25 § 279. Place to direct by mail.- We have herein before discussed the place of service where the service is not to be made by mail and the residence is known. It will be necessary now to consider to what postoffice the notice should be directed when the postoffice address is known. The propriety of sending a letter to a discontinued postoffice has been considered in a former section. It should first be observed that notice by mail is not compulsory, for notice may be sent by messenger, and if the messenger exhibit reasonable diligence in transmitting it the service is perfectly good. In the next place the particular postoffice which it is desired to address may be called by more than one name; and if that be the case the use of either name is proper. Again, a particular place may have more than one postoffice, and a notice directed to the place without indicating which postoffice would be sufficient, unless it be shown that the holder or his agent serving was aware that the recipient of the notice used one of the postoffices exclusively, or could have known it by reasonable diligence. The place to be addressed may be a district of country with a postoffice in it, and if the indorser lives in the district, notice to him through the postoffice for the district would be sufficient, unless the holder knew that he made use of a post 24 Lawrence v. Miller, 16 N. Y. 235. 3 Bank of Columbia v. Lawrence, 1 Pet. 578; Hazelton Coal Co. v. Ryerson, 20 N. J. Law, 129. But the special messenger differs from the mail in that notice put into the mail is good, but notice given to a special messenger proves nothing until it is shown that the messenger exercised diligence. Jarvis v. St. Croix Mfg. Co., 23 Me. 287. 4 Geneva Bank v. Howlett, 4 Wend. 328. 5 Morton v. Westcott, 8 Cush. 425; Roberts v. Taft, 120 Mass. 169; Manchester Bank v. White, 30 N. H. 456; Downer v. Remer, 21 Wend. 10, 23 Wend. 620; Bank of Manchester v. Slason, 13 Vt. 334; Burlingame v. Foster, 128 Mass. 125. If the postoffice has two names, either name may be used (Bank of Geneva v. Howlett, 4 Wend. 328); but a notice addressed to a county which has more than one postoffice is bad. Bank of Ill. v. Taylor, 7 T. B. Mon. 576. 6 office outside of that district. If the notice to be addressed is to a city of considerable size, it is not necessary to address the person receiving the notice by his street and house number, unless it be shown that the holder or his agent for service knew the house number and the street, or unless the address has been indicated in such a manner, e. g., upon the paper, that the holder ought to have known the number. There may be two places in different states with the same name; if one of those places be in the same state as the place where the notice is sent, the state need not be named in the address, but otherwise it should be. Subject to the above limitations the notice should be sent, in the absence of a controlling agreement, to the postoffice of the place of actual residence of the indorser or other person to be charged with notice, provided that place be known to be the residence of the party or represented by him to be such.10 This rule is to be followed regardless of the place where the bill or the note is dated." Sending the notice in this manner will always be considered sufficient if the mail is a proper method of service in the particular case. People, however, will be found residing in one place part of the year and in another place part of the year, and it would seem to be correct to address the postoffice of actual residence, regardless of the domicile.13 Yet mere absence from his family does not constitute a change of residence under this rule." But cases must frequently arise where the indorser lives away 6 Rand v. Reynolds, 2 Gratt. 171. 7 True v. Collins, 85 Mass. 438; Webber v. Gotthold, 28 N. Y. Supp. 763. 8 Bartlett v. Robinson, 9 Bosw. 305, 39 N. Y. 187. 9 Beckwith v. Smith, 22 Me. 125. 10 Young v. Durgin, 15 Gray, 264; Robinson v. Barber, 3 Am. Law J. (N. S.) 59; Lewiston Falls Bank v. Leonard, 43 Me. 144 (represented by indorser to be his postoffice). See also Pierce v. Pendar, 5 Met. 352. 12 11 Fitler v. Morris, 6 Whart. 406. 12 See § 272, ante. It is immaterial that the notice was never received. § 273, ante, note 1. 13 This is the rule as stated in Young v. Durgin, 15 Gray, 264. See Goodwin v. McCoy, 13 Ala. 271; Wooley v. Lyon, 117 Ill. 244; McMurtrie v. Jones, 3 Wash. C. C. 206; Gist v. Lybrand, 3 Ohio, 307. 14 Curtis v. State Bank, 6 Blackf. 312; Walker v. Stetson, 14 Ohio St. 89. from a place with a postoffice. In that contingency the place to send the notice through the mail, if the server does not know where the person to be served receives his mail, is the postoffice nearest to the residence of the indorser or drawer. 15 In order to determine the nearest postoffice it is said that the holder may consider the nearest postoffice the one from which he will get mail the soonest, not necessarily the postoffice nearest in point of distance.16 But the case must be very rare where such a condition of affairs is likely to exist. It is the safer rule to choose the postoffice that is the nearer in point of distance, and that choice is proper though the postoffice be in another state." But where the nearer postoffice was separated from the indorser's residence by a wide and rapid river, while another postoffice, though two miles farther away, was on the same side of the stream, the choice of the latter place of address was justifiable.18 This decision should have been put upon the ground that the holder had the right to assume that the indorser received his mail at the latter place. In yet another case, where the indorser lived three miles from the nearest postoffice and eleven miles from the place of demand, it was seemingly held, by an apparently foolish court, that the place of demand was the postoffice of the indorser, and that service by mail was improper.19 If it were shown that the holder knew that the indorser did not get mail at his nearest postoffice, but did get it from the postoffice at the place of demand, this decision might be upheld.20 Another court has held that where the drawer or indorser lives outside of the city the notice may be by mail to the city postoffice, if it is the nearest 15 Forbes v. Omaha Nat. Bank, 10 Neb. 338; Hazelton Coal Co. v. Ryerson, 20 N. J. Law, 129; Reid v. Payne, 16 Johns. 218; Seneca Co. Nat. Bank v. Neass, 3 N. Y. 442, 5 Denio, 329; Bank of Columbia v. Magruder, 6 Har. & J. 172; Woods v. Neeld, 44 Pa. 86. 16 Bank v. Lane, 10 N. C. 453; Bank of Louisiana v. Corl, 3 La. Ann. 273. 17 Harrison v. Bowen, 16 La. 282; Pollard v. Cook, 4 Rob. (La.) 199. 18 Bank of Louisiana v. Corl, 3 La. Ann. 273. 19 Nashville Bank v. Bennett, 1 Yerg. 166. 20 See the cases cited in note 28, infra. |