his principal on the 17th, and on the 18th forwarded the letter containing notice of dishonor, it was held sufficient.19

The factor, or other agent or attorney, may not know which of the prior parties his principal may desire to hold bound to him; or he may not know where notice would find them, as he has no interest in the bill or note, or privity with the parties, and the rule placing such agents on the footing of a distinct holder is essential to the convenient collection and management of negotiable paper.

The name of the party should be upon the bill or note, and a drawee who has not accepted, and who therefore is an entire stranger to the bill, is incompetent to give notice.20

§ 993. Sending the bill or note to a bank for collection implies authority to it to give notice, and in giving it, it may itself claim to be holder or agent of the holder or give it in the real holder's name.21 Authority to collect a bill is authority to give notice.22 A creditor holding the paper as collateral security is a holder for the purposes of notice, and so also is he who accepts or pays supra protest.24

23

994. If the holder be dead, his personal representative should give notice, if there be one; but if none be appointed at the time of maturity, the indorser will not be discharged if notice be sent him in a reasonable time after an appointment is made.25

19. In Firth v. Thrush, 8 B. & C. 387 (15 Eng. C. L.), 2 Man. & Ry. 259, Lord Tenterden said: "A banker who holds a bill for a customer is not bound to give notice of dishonor on the day on which the bill is dishonored. He has another day, and upon the same principle I think the attorney in this case was entitled by law to be allowed a day to consult his client."

20. See post, § 995; Chanoine v. Fowler, 3 Wend. 173; Brailsford v. Williams, 15 Md. 155; Stanton v. Blossom, 14 Mass. 116; Rosson v. Carrol, 90 Tenn. 90, 16 S. W. 66, quoting and approving text.

21. Worden v. Nourse, 36 Vt. 757; Woodthorpe v. Lawes, 2 M. & W. 109; Edwards on Bills, 629.

22. Worden v. Nourse, 36 Vt. 756.

23. Peacock v. Purcell, 14 C. B. (N. S.) 728 (108 Eng. C. L.).

24. Konig v. Bayard, 1 Pet. 262; Martin v. Ingersoll, 8 Pick. 1.

25. White v. Stoddard, 11 Gray, 38; 1 Parsons on Notes and Bills, 444, 559.

SECTION IV.

TO WHOM NOTICE OF DISHONOR SHOULD BE GIVEN.

§ 995. Each indorser of a bill or note is entitled to notice, and so also is the drawer of a bill payable to a third party, as bills generally are.26 The acceptor of a bill and the maker of a note are not entitled to notice, they being the primary debtors, nor are those who, from their irregular execution of the instrument, are adjudged joint makers or sureties, their contract being to pay in default of the principal, at all events.27 Where there are several successive indorsers, the holder may, and ordinarily does, give notice to all, with a view to preserve his recourse upon all. But he is not bound to give notice to all, in order to bind those to whom he does give it. He may, if he please, give notice to any one or more of the indorsers, who are then made liable to him; and the indorser receiving notice must then notify antecedent indorsers in order to assure himself.28 It is not, therefore, necessary for the notary to take any notice of the residence of the maker of the note, or make any inquiry as to the residence of any of the indorsers except the last. A different rule would obstruct business, and is not required.29

§ 995a. Indorsers for collection entitled to notice. The rule requiring notice to the indorsers of bills and notes extends to all indorsers, whether they are indorsers for value or mere agents for collection. A banking-house,3 30 or other agent,31 merely passing

26. Joseph v. Salomon, 19 Fla. 623; Sweet v. Swift, 65 Mich. 91; Bank v. Bradley, 117 N. C. 526, 23 S. E. 455, citing text; Northern v. Hawkins, 61 Mo. App. 9.

27. Fitch v. Citizens' Nat. Bank, 97 Ind. 212. See ante, § 707 et seq.; Hofheimer v. Losen, 24 Mo. App. 657; Hunnicutt v. Perot, 100 Ga. 312, 27 S. E. 787; Beissner, Admr. v. Weeks, 21 Tex. Civ. App. 14, 50 S. W. 138; Kennon v. Bailey, 15 Tex. Civ. App. 28, 38 S. W. 377; Guignon v. Union Tr. Co., 156 Ill. 135, 40 N. E. 556, 47 Am. St. Rep. 186.

28. Cardwell v. Allen, 33 Gratt. 167; Wood v. Callaghan, 61 Mich. 402; Bank v. Bank, 49 Ohio St. 351, 30 N. E. 958; Boteler v. Dexter, 20 D. C. Rep. 26.

29. Wood v. Callaghan, 61 Mich. 402; Wamesit Bank v. Butterick, 11 Gray, 387; Eagle Bank v. Hathaway, 5 Metc. (Mass.) 212; Lawson v. Farmers' Bank, 1 Ohio St. 206; Warren v. Gilman, 17 Me. 360; Story on Bills, §§ 326, 331, 419, 426.

30. McNeal v. Wyatt, 3 Humphr. 125; Scott v. Lifford, 9 East, 347; Seaton v. Scovill, 18 Kan. 435; Lynn Nat. Bank v. Smith, 132 Mass. 227.

31. Butler v. Duval, 4 Yerg. 265. Persons v. Kruger, 45 App. Div. 184, 60

title to the bill or note by indorsement for purposes of collection, stands on the same footing as any other indorser in respect to notice. "In regard to notice, each branch of a bank is considered a separate establishment." 32

It is not sufficient, in order to charge a prior indorser, to inclose notice for him to a subsequent one. Each successive indorser is entitled to notice, in order to charge him, and overdiligence in notifying one will not supply the defect as to diligence in respect to another.33 The transferrer of a negotiable instrument by delivery without making himself a party is not entitled to notice.34

§ 995b. Accommodation drawer or indorser entitled to notice; but not so if accommodated. An accommodation drawer or indorser is as much entitled to notice as if the drawing or indorsing was done for value; .35 but if the drawer or indorser be himself the accommodated, instead of the accommodating party, he is under obligation to take up the bill or note, has no remedy on doing so against any other party; and consequently is without legal possibility of injury, and is not entitled to notice.36

§ 996. Indorsers of bills or notes payable on demand, or indorsed overdue, entitled to notice. Although a bill or note is payable on demand, or has been indorsed long after it was due, there must still be a demand, and notice of default, in order to charge the indorser, because a bill or note, though overdue, continues to be negotiable, and is in the nature of a new bill payable on demand.37 This N. Y. Supp. 1078, holds that a notice of protest of a draft may be served upon an agent of the payee and indorser, who has authority from him to transact all the business of indorsing and accepting notes and drafts and to negotiate paper, particularly where he has negotiated and secured the discount of the drafts in question.

32. Clode v. Bayley, 12 L. J. Exch. 17, 12 M. & W. 51; Thompson on Bills, 351; Edwards on Bills, 623.

33. Stix v. Mathews, 63 Mo. 371; Brown v. Ferguson, 4 Leigh, 37. See post, 1045; Bank v. Bank, 49 Ohio St. 351, 30 N. E. 958.

34. Van Wort v. Wooley, 3 B. & C. 439.

35. Turner v. Samson, 2 Q. B. Div. 23, 19 Moak's Eng. Rep. 195; Thillman v. Gueble, 32 La. Ann. 260; Braley v. Buchanan, 21 Kan. 555.

36. Post, 1085. And if one, in position on paper, as an apparent indorser, though in fact a joint maker is not entitled to notice of dishonor." Bank of Jamaica v. Jefferson, 92 Tenn. 537, 22 S. W. 211, 36 Am. St. Rep. 100; Hull v. Myers, 90 Ga. 674, 16 S. E. 653.

37. See vol. I, § 611; Thompson v. Williams, 14 Cal. 162; Beebe v. Brooks, 12 Cal. 308; Colt v. Barnard, 18 Pick. 260; Bishop v. Dexter, 2 Conn. 419; Berry v. Robinson, 9 Johns. 121; Dwight v. Emerson, 2 N. H. 159; Greeley v.

principle seems clearly correct, though it has been said that in such cases the party has a reasonable time within which to give notice,38 and even that no notice at all is necessary.39 In a recent case, where it was contended that the holder of a note, indorsed overdue, had a "reasonable time" to give notice, it was responded and held, that such "reasonable time" meant "immediate notice, which at farthest is the next day after default, where the parties reside in the same town." 40 Demand and notice to the indorser of overdue note must be made as if the note became due on the day of indorsement."1 In California, it has been held that the contract of one who indorses a note after maturity, and as additional security to prevent legal proceedings against the payee and indorser, is that of a guarantor."

42

Hunt, 21 Me. 455; Kirkpatrick v. McCullough, 3 Humphr. 171; Leavitt v. Putnam, 3 N. Y. 494; Adams v. Torbert, 6 Ala. 865; Lockwood v. Crawford, 18 Conn. 361; Atwood v. Hazelton, 3 Bailey, 457; McKinney v. Crawford, 8 Serg. & R. 351; Course v. Shackleford, 2 Nott & McC. 283; Branch Bank v. Gaffrey, 9 Ala. 153; 1 Parsons on Notes and Bills, 520; Hart v. Eastman, 7 Minn. 74; Jones v. Middleton, 29 Iowa, 188; Bemis v. McKenzie, 13 Fla. 557; Swartz v. Redfield, 13 Kan. 550; Shelby v. Judd, 24 Kan. 161; Sawyer v. Brownell, 13 R. I. 141; Graul v. Strutzel, 53 Iowa, 712; Bank of Red Oak v. Orris, 40 Iowa, 332; Pryor v. Bowman, 38 Iowa, 92; Blake v. McMillen, 33 Iowa, 150; McEwer v. Kirtland, 33 Iowa, 348; Fell v. Dial, 14 S. C. 247; Duffy v. O'Connor, 7 Baxt. 498. In Light v. Kingsbury, 50 Mo. 331, Adams, J., said: "This is a negotiable note (payable one day after date), indorsed after date. Such indorsement is equivalent to drawing a new bill at sight, and the same diligence in making demand and giving notice is required to charge the indorsers." Though a note transferred after maturity comes disgraced to the indorsee" (as was said by Lord Ellenborough in Tinson v. Francis, 1 Campb. 19), and is in his hands subject to all equitable defenses attaching to it and existing between maker and payee at maturity, it is nevertheless negotiable, and to hold indorser, demand must be made on maker and notice of nonpayment given. Rosson v. Carroll, 90 Tenn. 90, 16 S. W. 66, citing and approving text; Landon v. Bryant, 69 Vt. 203.

38. Van Hoesen v. Van Alstyne, 3 Wend. 75.

39. Gray v. Bell, 3 Rich. 71, O'Neall, J.; 1 Parsons on Notes and Bills, 519, note v.

40. McKewer v. Kirtland, 33 Iowa, 352, approved in Graul v. Strutzel, 53 Iowa, 712.

41. Landon v. Bryant, 69 Vt. 203, 37 Atl. 297. See § 611; Verder v. Verder, 63 Vt. 38, 21 Atl. 611, holds that in Vermont a note payable on demand is made by statute overdue in sixty days.

42. Crooks v. Tully, 50 Cal. 255; Reeves v. Howe, 16 Cal. 152; Geiger v. Clark, 13 Cal. 579. But guarantor is entitled to notice of nonpayment.

§ 997. Fixed indorsers. Where the indorsement upon the bill or note was made before its maturity, and after the bill or note had been transferred with it upon it, and had been returned to the indorser; and he, after paying it, and after the liability of all parties had been fixed, and reissued it with their indorsements upon it, the general rule requiring demand of the maker, and notice to the indorser, where the indorsement was made after maturity, in order to charge the indorser, would not apply. For in such case the demand had been made, the notice given, and his liability determined before he reissued the instrument. Thus, where the indorser, who had taken up a bill at maturity, and upon which his own and prior indorser's liability had been fixed by demand and notice, placed it in the hands of an auctioneer, who sold it to the plaintiff, it was held, that all the parties were bound without any new demand and notice, because there was no new contract of indorsement. And as to the indorser who put it upon the market bearing his name, such act was a representation of liability, and he was estopped in good faith and sound morals from denying it.43 The like rule would apply where the indorser who has paid it reissues an overdue note, bearing his name thereon, and himself persuades the indorsee to take it. In general, the indorser who has paid and reissues a note will be bound as a fixed indorser, or as one entitled to notice according to intention.45 When a note was reindorsed after maturity to a preindorser, who then reissued and reindorsed it, it was held that all the indorsers were liable to the holder.46

§ 998. Notice to the agent of the party for the general conduct of his business is the same as if given to the principal in person.* But notice to the party's attorney or solicitor, unless he is specially authorized to receive it, is insufficient.48 If an agent draw a bill

43. St. John v. Roberts, 31 N. Y. 441 (1865). See also Williams v. Matthews, 3 Cow. 252; Airy v. Nelson, 39 Ark. 47.

44. Libby v. Pierce, 47 N. H. 314.

45. Montgomery R. Co. v. Trebles, 44 Ala. 258. See post, § 1242. 46. Scott v. First Nat. Bank, 71 Ind. 467.

47. Cross v. Smith, 1 Maule & S. 545; Wilkins v. Commercial Bank, 6 How. (Miss.) 217; Fassin v. Hubbard, 55 N. Y. 471; Lake Shore Nat. Bank v. Colliery Co., 58 N. Y. S. C. 68, citing the text; Persons v. Kruger, 45 App. Div. 184, 60 N. Y. Supp. 1078. See § 995a.

48. Louisiana State Bank v. Ellery, 16 Mart. 87; Cross v. Smith, 1 Maule & S. 545.