49

in his own name, notice should be given to him, and if given to his principal it will be insufficient, he being no party to the paper. If the paper be signed by a duly authorized agent in the principal's name, notice should be given to the principal, who is the party liable.50 Whether or not the agent would be regarded as authorized to receive it, is questioned; and it has been decided that authority to indorse is not authority of itself to receive notice.51 The mere fact that a party is the "financial agent" of his principal does not of itself constitute him an agent to receive notice.52 An agent constituted before the breaking out of a war which severs him from his principal, with authority to receive notice of dishonor, may continue to act for that purpose; and notice served upon him. will suffice to charge the indorser.53 If a note be payable by instalments, demand and notice as to the last instalment binds the indorser as to that.54

$999. In cases of partnership, notice must be given to the firm -but notice to any one partner is notice to the firm;55 even though there has been a dissolution.56 And it matters not that the firm. was dissolved by war, and that one of the partners was separated from the other by a hostile line.57 If an indorser be a member

49. Grosvenor v. Stone, 8 Pick. 79.

50. Clay v. Oakley, 17 Mart. (La.) 137.

51. Valk v. Gaillard, 4 Strobh. 99; Wilcox v. Routh, 9 Smedes & M. 476. 52. New York, etc., Co. v. Selma Savings Bank, 51 Ala. 305.

53. Hubbard v. Matthews, 54 N. Y. 50.

54. Eastman v. Turman, 24 Cal. 383.

55. Bayley on Bills, 285; Story on Bills, §§ 299, 305; Story on Notes, § 368; Chitty on Bills, 355; Gowan v. Jackson, 20 Johns. 176; People's Bank v. Keech, 26 Md. 521; St. Louis Bank v. Altheimer, 91 Mo. 190; Hays v. Citizens' Sav. Bank, 101 Ky. 201, 40 S. W. 573; Citizens' Sav. Bank v. Hays, 96 Ky. 365, 29 S. W. 20; Barber v. Van Horn, 54 Kan. 33, 36 Pac. 1070.

56. Fourth Nat. Bank v. Henschuh, 52 Mo. 207; Hubbard v. Matthews, 54 N. Y. 50; Brown v. Turner, 15 Ala. (N. S.) 832; Coster v. Thomason, 19 Ala. (N. S.) 717. See ante, vol. I, § 592; Slocomb v. Lizardi, 21 La. Ann. 355.

57. In Hubbard v. Matthews, 54 N. Y. 50, Johnson, C., said: "It results from necessity if the liability of the absent partner in a firm dissolved by the event of war is to be continued at all in respect to engagements existing at the time when war breaks out, that he must be deemed to be represented by the representative of the firm remaining within the jurisdiction of the belligerent whose authority extends over the place of business of the firm, and that as in respect to property and rights there existing, so in respect to obligations and liabilities dated before the war, he must share the fortunes of the firm."

of the firm, the notice to the firm is sufficient.58 The general rule, that notice to any partner is notice to the firm, is subject to this exception that where one member resides at a distance, and another at the place of protest, notice must be given to the latter. At least, it has been so held.59

§ 999a. Joint indorsers. If there are joint indorsers, not partners, notice must be given to each of them, and notice to one only would not even bind him. But, "if the drawer of a bill," said the Supreme Court of the United States, "be in truth the partner of the acceptor, either generally, or in the single adventure in which the bill made a part, in that event notice of dishonor of the bill by the holder to the drawer, need not be given. The knowledge of one partner is the knowledge of the other, and notice to the one, notice to the other." 61 If one of a firm die, notice to the survivor suffices, 62

§ 1000. If the party entitled to notice be dead at the time the bill or note becomes payable, and this is known to the holder, notice should be sent to his executor or administrator, if there be any, and it can be ascertained by reasonable inquiry who or where he is; and under such circumstances notice addressed to the de

58. Rhett v. Poe, 2 How. 457. In the case of Presbrey v. Thomas, 1 App. D. C. 171, the opinion of the court indicates that not only must some knowledge of the transaction in the firm name be shown, but that there must be some evidence tending to show that the other members of the firm in some manner recognize the obligation as a firm debt.

59. Hume v. Watt, 5 Kan. 34; Adams Oil Co. v. Christmas & Hughes, 101 Ky. 564, 41 S. W. 545.

60. Bank of the United States v. Bierne, 1 Gratt. 234; Hubbard v. Matthews, 54 N. Y. 50; People's Bank v. Keech, 26 Md. 521; Willis v. Green, 5 Hill, 232; Shepard v. Hawley, 1 Conn. 368; Boyd v. Orton, 16 Wis. 495; Dabney v. Stidger, 4 Smedes & M. 749; State Bank v. Slaughter, 7 Blackf. 133; Union Bank v. Willis, 8 Metc. (Mass.) 504; Bank of Chenango v. Root, 4 Cow. 126; Miser v. Trooinger, 7 Ohio St. 238; Bealls v. Peck, 12 Barb. 245; Sayre v. Frick, 7 Watts & S. 383; Story on Bills, § 199; Wood v. Wood, 1 Harr. 429. Contra, Dodge v. Bank of Kentucky, 2 A. K. Marsh. 510; Higgins v. Morrison, 4 Dana, 100; Thompson on Bills, 361; Story on Notes, § 255, note 2. See ante, vol. I, § 594; Bowie v. Hume, 13 App. D. C. 286, citing with approval the text.

61. Rhett v. Poe, 2 How. 473; Los Angeles Nat. Bank v. Wallace, 101 Cal. 478, 36 Pac. 197; Hays v. Citizens' Sav. Bank, 101 Ky. 201, 40 S. W. 573.

62. Hubbard v. Matthews, 54 N. Y. 50; Slocomb v. Lizardi, 21 La. Ann.

ceased by name would be insufficient.63 Notice addressed to the legal representative," in a case in which the death of the indorser was recent, and no personal representative had as yet qualified, has been deemed sufficient; but it has been held that if addressed to "the estate," it would not, that term applying as well to the heir-at-law as to the executor or administrator.65 And where a personal representative has qualified, and is known, or could be ascertained by due diligence, it would not be sufficient to address notice through the mail to "the administrator," "executor," or “personal representative," by official designation only, as it might lead to delay. The address should be to such party by name." Notice to one of several executors or administrators is sufficient.67 It is said, however, that in all these cases reception of notice by the personal representative in a reasonable time will be sufficient - curing all defects in the sending.68 Where two promissory notes fell due at several times, and the indorser of both being deceased at their maturity, notice was given to the executor named in his

63. Oriental Bank v. Blake, 22 Pick. 206; Barnes v. Reynolds, 4 How. (Miss.) 114; Cayuga County Bank v. Bennett, 5 Hill, 236; 1 Parsons on Notes and Bills, 501, 502; Goodnow v. Warren, 122 Mass. 83; Dodson v. Taylor, 56 N. J. L. 11, 28 Atl. 316, citing text.

64. In Boyd's Admr. v. City Sav. Bank, 15 Gratt. 501, it appeared that Boyd, the indorser of the note, was dead when it became due and was protested, and had no personal representative. He resided in Lynchburg at the time of his death, and his family continued to reside there until after the protest of the note. Notice of dishonor was on the day of protest deposited by the notary in the post-office at Lynchburg, directed to "The Legal Representative of James M. Boyd, deceased, Lynchburg; " and this was all the notice given. The Court of Appeals held that the notice was sufficient, saying that the legal representative (upon his qualification) was as likely to receive notice through this channel as if it had been left at the late residence of the deceased indorser; and that the former was preferable, inasmuch as "the family of the deceased, at the time of the protest, might be in a state of deep affliction (occasioned by his recent death), when it would be painful both to them and the notary for him to have to visit them on a matter of business." Pillow v. Hardeman, 3 Humphr. 538; Planters' Bank v. White, 2 Humphr. 112. § 1011.

See post,

65. Cayuga County Bank v. Bennett, 5 Hill, 236; Massachusetts Bank v. Oliver, 10 Cush. 557.

66. Smalley v. Wright, 40 N. J. L. 471.

67. Bealls v. Peck, 12 Barb. 245; Lewis v. Bakewell, 6 La. Ann. 359; Carolina Nat. Bank v. Wallace, 13 S. C. 347.

68. Cayuga County Bank v. Bennett, 5 Hill, 236; Maspero v. Pedesclaux, 22 La. Ann. 227; 1 Parsons on Notes and Bills, 502. See §§ 1003, 1050.

will, who had presented it for probate; before the maturity of the second note the executor had renounced the executorship, and an administrator had been appointed, but no public notice of the fact had been given it was held that notice as to the first note was sufficient, but not as to the second.69 In a case where no personal representative of a deceased indorser had been appointed, notice left at his residence with his son-in-law was deemed sufficient." Notice sent to a person who was afterward appointed administrator of the deceased has been held insufficient, on the ground that he occupied no such relation to the estate at the time of its reception, that he was either honorably or in legal duty bound to do anything for its protection.71

§ 1001. If there be no personal representative, notice sent to the family residence of the deceased will be sufficient;72 and it is likewise sufficient if notice be addressed to the deceased when, without negligence, the holder is not aware of his death.73 If notice. is left at the family residence, no personal representative having been appointed, it will not be necessary, when one is appointed, to give him notice, the rights of the holder being fixed by his doing. what the circumstances required when the paper fell due.74

§ 1002. If the party be bankrupt, it is best to give notice to him, and to his assignee also. If there be as yet no assignee appointed,

69. Goodnow v. Warren, 122 Mass. 79; Drexler v. McGlynn, 99 Cal. 143, 33 Pac. 773.

70. Weaver v. Pennsylvania, 27 La. Ann. 129. 71. Mathewson v. Stafford Bank, 45 N. H. 104. 122 Mass. 82.

See Goodnow v. Warren,

72. Merchants' Bank v. Birch, 17 Johns. 25; Stewart v. Eden, 2 Cai. 121; Dodson v. Taylor, 56 N. J. L. 11, 28 Atl. 316, citing text. In Goodnow v. Warren, 122 Mass. 82, Devens, J., said: "It has been held that if notice be sent to the last residence, or last place of business of the deceased, it is sufficient to render his estate responsible, as it may be reasonably supposed that it will thus reach those interested in it." Linderman v. Guldin, 34 Pa. St. 54. In the case of Bank of Jefferson v. Darling, 91 Hun, 236, 36 N. Y. Supp. 1122, held, that two notices of dishonor signed by a notary, one addressed to "J. Darling" and the other "to the estate of J. Darling," both being inclosed in an envelope directed to "estate of J. Darling, Stoney Brook, L. I." (Darling being dead), was sufficient, and that reasonable diligence had been exercised.

73. Barnes v. Reynolds, 4 How. (Miss.) 114; Maspero v. Pedesclaux, 22 La. Ann. 227; Cosgrave v. Boyle, 6 Canada Sup. Ct. Rep. 178.

74. Merchants' Bank v. Birch, 17 Johns. 25.

notice to him is sufficient;75 and perhaps it might be sufficient even if one had been appointed.76 If given to the assignee alone, it would probably be sufficient."

If the bankrupt has absconded, notice should be given his assignee, if any there be ;78 and if there be none, to any one representing his estate.79

SECTION V.

MODE AND FORMALITIES OF GIVING NOTICE WHEN THE PARTY GIVING AND THE PARTY TO RECEIVE IT RESIDE IN THE SAME PLACE.

1003. Notice, however communicated, is sufficient if duly received. -If the party addressed receives the notice in due season, or can be properly inferred by the jury from the facts of the case that it was received, the mere manner of its transmission is wholly immaterial.80 A personal service of notice is good wherever it may be made, provided it be done in proper time; at an improper place it is sufficient if it reaches the party for whom it was intended in due season;81 and so likewise if it be sent by mail where the parties reside in the same place, it is good if it duly reaches the party addressed.82

The distinction between the different modes of giving notice is this: that where the holder and indorser reside in different places, the former, if he deposits the notice in the post-office in due season, has no further burden on him as to the actual receipt

75. Ex parte Moline, 19 Ves. 216.

76. 1 Parsons on Notes and Bills, 500.

77. See Callahan v. Kentucky Bank, 82 Ky. 231, citing text. See also House v. Vinton Bank, 43 Ohio St. 354, disapproving Callahan v. Kentucky Bank, supra; American Nat. Bank v. Junk Bros., 94 Tenn. 624, 30 S. W. 753, citing text.

78. Rhode v. Proctor, 4 B. & C. 517, 6 Dowl. & R. 610.

79. Ibid.

80. Hyslop v. Jones, 3 McLean, 69; Dicken v. Hall, 87 Pa. St. 379; First Nat. Bank v. Wood, 51 Vt. 471; People's Bank v. Scalzo, 127 Mo. 164, 29 S. W. 1032, text cited.

81. Bank of United States v. Corcoran, 2 Pet. 121; Foster v. McDonald, 5 Ala. 376; Manchester Bank v. Fellows, 8 Fost. 302; Whiteford v. Burckmeyer, 1 Gill, 127; Bradley v. Davis, 26 Me. 45; Cabot Bank v. Warner, 10 Allen, 524; Shelburne Nat. Bank v. Townsley, 107 Mass. 444; Gilchrist v. Downell, 53 Mo. 591; First Nat. Bank v. Wood, 51 Vt. 473; Carolina Nat. Bank v. Wallace, 13 S. C. 347. See §§ 1000, 1050.

82. Ibid. Service by mail upon an indorser having an office in this (New York) State, but residing in another, is good. See People v. North River Bank, 62 Hun, 484, 17 N. Y. Supp. 200.