Beckwith. Beckwith was also called by the plaintiff, and gave the defendant's residence, place of business, and other addresses for receiving mail at that time, none of which, however, was Central Park West; and further testified that the defendant had had an apartment in Central Park West, but does not specify the time or place. He was not asked concerning the address that he gave the notary. Beckwith testified that the defendant was a member of his firm. It may be that the jury would have been justified in finding that the notary addressed the notice to an address given by Beckwith, the defendant's partner, and that this would be a full compliance with the duty of exercising proper diligence to ascertain the postoffice address and notify the indorser of the dishonor of the paper, which is a condition precedent to his liability. (Spencer v. Bank of Salina, 3 Hill, 520; University Press v. Williams, 48 App. Div. 188, 62 N. Y. Supp. 986; Requa v. Collins, 51 N. Y. 144; Gawtry v. Doane, id. 84, 92). The court, however, was not warranted in attempting to reconcile this conflict of testimony and in deciding the question as one of law. The verdict, therefore, cannot be sustained upon the direct notice to the defendant. The notary gave due and timely notice of protest to the defendant's firm, who were both makers, and in form, at least, subsequent indorsers. If the plaintiff had alleged that the defendant was a member of the firm, I am of opinion that he would be chargeable with knowledge of the dishonor and with the notice given to his firm as indorsers (Gowan v. Jackson, 20 Johns. 176; Halliday v. McDougall, 22 Wend. 264, 272. See, also, Negotiable Instruments Law, Laws 1897, p. 739, c. 612, §§ 170, 185, 186); but this was not pleaded, and, since it was not an issue, there is no justice or propriety in seizing upon this item of evidence, although admitted without objection that it was not pleaded, for the purpose of holding the defendant. The verdict should stand or fall upon the issues as tried. The notice to the firm, however, was received either on the day the note fell due or on the morning of the day following. With it came, under separate cover, addressed to the defendant, care of the firm, a formal notice of protest by the notary in behalf of the plaintiff directed to the defendant, and the firm were requested to forward the same to him. Mr. Beckwith testified that immediately upon receiving this notice he inclosed it in an envelope and addressed it to the defendant at his regular place for receiving mail in the city of New York, which was in care of his counsel on this appeal. The notary, who was a member of the bar of Pennsylvania, testified that the statutory law of that state required

that the notice of protest to an indorser, when served by mail, be addressed either to his residence or place of business, or last place of residence. If this testimony is to be construed literally, it indicates that the rule in Pennsylvania is more restricted than the requirements of the law merchant or of the negotiable instruments law as adopted in this and many other states, including Pennsylvania (Act of Assembly of Pennsylvania No. 162, 1901 [P. L. 194]), in that under them, if the indorser has not designated an addres on the instrument, notice to any address where he is accustomed to receive mail would be sufficient. (Ransom v. Mack, 2 Hill, 587, 38 Am. Dec. 602; Van Vechten v. Pruyn, 13 N. Y. 549, 555). This question would not have arisen had the plaintiff's counsel introduced the statute, instead of taking the opinion of the notary, which was manifestly not only erroneous on the law, but, as he construed the law, it is doubtful whether the notice would be sufficient. We think that the verdict may be saved, however, upon the theory that this evidence was incompetent to prove statutory law (Code Civ. Proc., §942; Hynes v. McDermott, 82 N. Y. 41, 54, 37 Am. Rep. 538; Lincoln v. Battelle, 6 Wend. 475; Chanoine v. Fowler, 3 Wend. 173); and, even if the plaintiff, having introduced it, is bound by it, it is insufficient to establish that the law of Pennsylvania on this point is different from the law merchant, and should be so construed as to be consistent therewith.

Although it presumptively appears from the face of the notes and the indorsements that the defendant was an accommodation indorser for the makers (Smith v. Weston, 159 N. Y. 194, 54 N. E. 38; Nat. Bank v. German American M. W. Co., 116 N. Y. 281, 22 N. E. 567, 5 L. R. A. 673), and therefore would not be liable to them, and consequently they could not, in their own behalf, give him a valid notice of protest (Negotiable Instrument Law, Laws 1897, p. 739, c. 612, § 161; Cabot Bank v. Warner, 92 Mass. 522; Harrison v. Roscoe, 15 M. & W. 231; Stanton v. Blossom, 14 Mass. 116, 120, 7 Am. Dec. 198; Story on Promissory Notes, § 303 [7th Ed.]), yet they could on behalf of the bank, and as its agents, give the notice by forwarding it immediately, as was done (Negotiable Instruments Law, Laws 1897, p. 739, c. 612, §§ 162, 163; Sewall v. Miller, 16 N. Y. 235; Smith v. Poillon, 87 N. Y. 590, 41 Am. Rep. 402; Eagle Bank v. Hathaway, 46 Mass. 212; Rowe v. Tipler, 13 C. B. 249; Chapman v. Keane, 3 Adol. & L. 193; Lysaght v. Bryant, 19 L. J. C. P. 160).

It follows, therefore, that the judgment and order should be affirmed, with costs. All concur, except Van Brunt, P. J., who dissents.

NOTICE TO WHOM.

Linn et al. v. Horton, imp. (1863), 17 Wis. 157.

Appeal from the Circuit Court for Rock county.

891.

Yates and Gray, for value, gave their note, indorsed for them by Horton before delivery, and payable to the plaintiffs or order at the Rock County Bank, at Janesville, in this state. Before the note became due, the plaintiffs, who were merchants in the city of New York, indorsed it for collection to Kissam & Taylor, bankers in the same city, who indorsed it and sent it for collection to the Central Bank of Wisconsin, at Janesville. Default having been made in its payment when due, to wit, November 22, 1861, it was duly protested, and on the same day the note and notice of protest for Horton, and like notices for Kissam & Taylor and the plaintiffs respectively, were enclosed in an envelope and deposited in the postoffice at Janesville, postpaid, directed to Kissam & Taylor, who received the same November 27. On the same day Kissam & Taylor delivered to the plaintiffs the notices addressed to them and to Horton respectively; and the plaintiffs, on the same day, enclosed the notice to Horton in an envelope directed to him at Janesville, and deposited the same postpaid, in the postoffice at New York; but the notice was never, in fact, received by Horton. This action was brought against Horton together with the makers; but the Circuit Court found that "the notary who protested the note did not use due diligence to ascertain the residence of Horton," and thereupon held that proper steps had been not taken to charge him, and rendered judgment in his favor; from which the plaintiffs appealed.

Conger & Hawes, for appellants.

Charles G. Williams, for respondent.

By the court, DIXON, C. J. It is an established principle of mercantile law, that if the holder of a bill or note chooses to rely upon the responsibility of his immediate indorser, there is no necessity for his giving notice to any previous party; and if such notice be properly given, in due time, by the other parties, it will enure to the benefit of the holder, and he may recover thereon against any of them. Thus, if the holder notifies the sixth indorser, and he the fifth, and so on to the first, the latter will be liable to all the parties. (1 Parsons on Bills and Notes, 503, 504; and Edwards on Bills and Notes, 473, 474, and the cases cited). And

it is no objection to such notice that it is not in fact received so soon by the first or any prior indorser, as if it had been transmitted directly by the holder or notary, provided it has been seasonably sent by each indorser as he receives it. (Colt v. Noble, 5 Mass., 167; Mead v. Engs., 5 Cow., 303; Howard v. Ives, I Hill, 263). And the same degree of diligence must be exercised on the part of the indorser in forwarding notice as is required of the holder. Ordinary diligence must be used in both cases. He is not bound to forward notice on the very day upon which he receives it, but may wait until the next. (Howard v. Ives, and the authorities cited).

For the purpose of receiving and transmitting notices, those who hold at the time of protest, and those who indorse as mere agents to collect, are regarded as real parties to the bill or note; the former as holders in fact, and the latter as actual indorsers for value. (Mead v. Engs; Howard v. Ives).

It follows from these principles, that the proper steps were taken to charge the defendant Horton as indorser. Notice for him was forwarded by mail, postpaid, on the day of the protest, to the agents and last indorsers in New York, and delivered by them, on the day it was received, to the plaintiffs, their immediate indorsers, who, on the same day, deposited it, inclosed in an envelope postpaid, in the postoffice at New York, directed to the defendant at Janesville, Wisconsin, his proper postoffice.

Under these circumstances, the only question which can possibly arise is, whether the defendant ought to be discharged by reason of the notice not having been in fact received by him. He testified that it was not. Professor Parsons observes, that in all the cases of constructive notices, where notice given by a subsequent to a prior indorser has been held to enure to the benefit of the immediate indorser, it has appeared that the notice was actually received; and he raises a question whether this would be so if the notice was sent to the wrong place. (1 Pars. on Notes and Bills, 504, note, and 627). But here the notice was sent to the right place. Besides, the plaintiffs, who seek to avail themselves of the notice, are the indorsers who sent it to the defendant as the indorser next immediately preceding them. We have already seen that the rule of diligence as to them is the same as in the case of the holder.

Let the judgment be reversed, and the cause remanded with directions to enter judgment in favor of the plaintiffs according to the demand of the complaint.

NOTICE BY INUREMENT.

Lysaght v. Bryant. (See page 413.)

NOTICE TO PARTNERS.

Fourth Nat. Bank v. Heuschen. (See page 365.)

NOTICE TO BANKRUPT.

Am. Nat. Bank v. Junk Bros (1895), 94 Tenn. 624.

Appeal from Chancery Court of Davidson county. ANDREW ALLISON, Ch.

J. M. Gaut and J. S. Pilcher, for Bank.
A. N. Grisham, for Junk Bros.

BEARD, J. This suit was instituted against the Junk Bros. Lumber & Manufacturing Co., a corporation with its situs in Nashville, as the indorser for value of certain domestic negotiable notes. The defendant resisted recovery on the ground that notice of dishonor of the paper was not given as the law requires. A decree having been pronounced against the corporation, it has filed the record in this court, and the action of the court below in overruling this defense is assigned as error.

Before coming to the general question raised by the assignments, it is proper to dispose of five of these notes, which are shown by the proof to have been made for the accommodation of this corporation and afterwards indorsed by it to the complainant. As to these notes, their makers stood in the situation of sureties to the indorser, and it was the latter's duty to provide funds to meet them at maturity, and it was, therefore, bound to the holder without presentment, protest, or notice. (2 Am. & Eng. Ency. of Law, 399; 2 Daniel on Nego. Ins., Sec. 1085; 3 Randolph on Com. Paper, Sec. 1205; Black v. Fizer, 10 Heis., 48). Thus disposing of those five notes, the question recurs as to the liability of the defendant as indorser of the remaining thirty-five.

The facts disclosed in the record are, that, for a considerable period of time, the Junk Bros. Lumber & Manufacturing Co. were engaged in manufacturing in Nashville, with its business