§ 106. Deposit in post-office-what constitutes.Notice is deemed to have been deposited in the postoffice when deposited in any branch post-office or in any letter-box under the control of the post-office department.

Rule at common law. The practice authorized by this section was approved in a number of cases. See Nat. Bank v. Shaw, 79 Me. 376; Pearce v. Langfit, 101 Pa. St. 507; Johnson v. Brown, 154 Mass. 105; Skilbeck v. Garbett, 7 Q. B. 846. In some cases it had been held that delivery to a letter carrier was sufficient. Pearce v. Langfit, 101 Pa. St. 507; Shoemaker v. Mechanics' Bank, 59 Pa. St. 79. But it was not deemed wise to adopt this rule in the statute.

Proof of deposit in post-office. The fact that the notice was deposited with the post-office may be proved like other facts, by either direct or circumstantial evidence. It may be shown by the testimony of the person who deposited it, or by proof of facts from which it may be reasonably inferred that it was so deposited. Central National Bank v. Stoddard, 83 Conn. 332. In an action against an indorser, evidence tending to show that he did not receive notice of dishonor is competent upon the question as to whether notice was ever mailed to him, and the exclusion of such evidence is error. Union Bank v. Deshel, 139 App. Div. (N. Y.) 217.

Presumption as to deilvery.-A notice placed in a mail chute under the control of the post-office department in the city of New York on the day of protest and postmarked the following day at noon will be presumed, in the absence of evidence to the contrary, to have been delivered before the close of business on that day, as required by section 103. Wilson v. Peck, 66 Misc. (N. Y.) 179.

§ 107. Notice to antecedent parties-time of.Where a party receives notice of dishonor, he has, after the receipt of such notice, the same time for giving notice to antecedent parties that the holder has after the dishonor.

Rule at common law. This section does not change the law. See Howland v. Adrian, 29 N. J. Law, 41; Howard v. Ives, 1 Hill, 263; Jameson v. Swinton, 2 Taunt. 224; Shelburne Falls National Bank v. Townsley, 102 Mass. 177; Seaton v. Scovill, 18 Kans. 435; Haly v. Brown, 5 Pa. St. 178; Etting v. Schuylkill Bank, 2 Pa. St. 355; Struthers v. Blake, 30 Pa. St. 139; Bray v. Hadwen, 5 Maule & Sel. 68; Linn v. Horton, 17 Wis. 150.

Notice to immediate indorser.-If the holder of an indorsed 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 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. And it is no objection to such notice that it is not in fact received by the first or any prior indorser, as soon as if it had been transmitted directly by the holder or notary, provided it has been seasonably sent by each indorser as he received it. Colt v. Noble, 5 Mass. 167; Mead v. Engs, 5 Cow. 303; Howard v. Ives, 1 Hill, 263.

Degree of diligence required.-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. See cases above cited. See also Williams v. Paintsville Nat. Bank, 143 Ky. 786. The holder of a check indorsed and deposited the same in his bank for collection on July 28th. On July 29th, he was notified by the bank that the check had been dishonored, and on July 30th, he notified the payee by telegraph: Held, that the notice was in due time under this section. Jurgens v. Wichmann, 124 App. Div. (N. Y.) 531.

Bank holding paper for collection.-A bank holding for collection a note which has been dishonored, is required to give notice to only its own principal, and he in turn to give notice to his principal, and so on down the line of indorsers. Gleason v. Thayer, 87 Conn. 248; Shea v. Vahey, 215 Mass. 80.

Where indorser is liable for only part of debt.-The application of this section is not confined to those who are antecedent in

liability as to the whole of the debt, but it applies as to all who are antecedent as to any part of it. Williams v. Paintsville Nat. Bank, 143 Ky. 786.

§ 108. Where notice must be sent.-Where a party has added an address to his signature, notice of dishonor must be sent to that address; but if he has not given such address, then the notice must be sent as follows:

1. Either to the post-office nearest to his place of residence, or to the post-office where he is accustomed to receive his letters; or

2. If he live in one place, and have his place of business in another, notice may be sent to either place;

or

3. If he is sojourning in another place, notice may be sent to the place where he is sojourning.

But where the notice is actually received by the party within the time specified in this act, it will be sufficient, though not sent in accordance with the requirements of this section.

Where address is added to signature.-See Bartlett v. Robinson, 39 N. Y. 187. In this case the indorsement was in the following form: "Chas. Robinson, 214 E. 18th Street." The notice of dishonor sent through the post-office was addressed "Chas. Robinson, Esq., City of New York," and was not received by the indorser. Held, that he was discharged. For cases applying the statute, see Archuleta v. Johnston, 53 Colo. 393; Century Bank v. Breitbart, 89 Misc. (N. Y.) 308.

Nearest post-office. See Bank of Columbia v. Lawrence, 1 Peters, 578; National Bank v. Cade, 73 Mich. 449; Northwestern Coal Co. v. Bowman, 69 Iowa 150; Mercer v. Lancaster, 5 Pa. St. 160; Woods v. Neeld, 44 Pa. St. 86; Haly v. Brown, 5 Pa. St. 178; Rand v. Reynolds, 2 Gratt, 171. But if sufficient inquiries have been made, and information received on which the holder has a right to rely, a mistake as to the nearest or usual post-office does not release the indorser. Moore v. Hardcastle, 11 Md. 486. For a

case where the indorser received his mail at two post-offices, see Shelburne Falls Nat. Bank v. Townsley, 107 Mass. 444. A notice addressed to the indorser at "New York" is insufficient where there is no evidence that he lived, ever had lived, or was sojourning in New York, and no inquiry was made to ascertain whether such was the fact. Fonseca v. Hartman, 84 N. Y. Supp. 131. See also Dupont de Nemour Powder Co. v. Rooney, 63 Misc. (N. Y.) 344.

Where place of residence and business are different.-Bank of U. S. v. Carneal, 2 Peters, 549; Williams v. Bank of U. S., 2 Peters, 96; Montgomery Co. Bank v. Marsh, 7 N. Y. 481. The rule that notice might be served at the place of business, as well as at the residence, was not changed by the former statute of Wisconsin, Laws 1861, Ch. 79. Simus v. Larkin, 19 Wis. 390.

Place of sojourn.-Chouteau v. Webster, 6 Metc. 1; Young v. Durgin, 15 Gray, 264; Bigley's Adm'r v. Cluff, 16 Gratt. 284, 291292. The stability of residence acquired under laws relating to taxation and the settlement of paupers is not necessary when ascertaining the abode of an indorser for the purpose of giving him notice of dishonor by mail. He may have a residence for this purpose at two places at the same time, and, in such case, notice to him at either place will be sufficient. Lowell Trust Company v. Pratt, 183 Mass. 379, 381.

Where notice is misdirected.-A notice addressed on its face, by mistake, to the maker instead of the indorsee, but inclosed in an envelope properly addressed to the indorsee, and received by him, is sufficient. Wilson v. Peck, 66 Misc. (N. Y.) 179.

Where notice is actually received. Although the residence or place of business is the usual and proper place for giving notice, it will be good if actually given anywhere. Dickens v. Hall, 87 Pa. St. 379, 380. If the party to be charged receives the notice in due time he cannot object to the means employed. Terbell v. Jones, 15 Wis. 235; Whitford v. Burckmeyer, 1 Gill, 127. But if the holder employs other means than the mail he does so at his own risk. Id. Notice sent by telegraph, for example, would be sufficient if actually received, and an omission to post the notice in due season might be corrected in this way. Jurgens v. Wickman, 124 App. Div. (N. Y.) 531. Or in such case, notice might be

given by telephone. American Nat. Bank v. Fertilizer Co., 125 Tenn. 328.

§ 109. Waiver of notice.-Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied.

Rule at common law. The statute has not changed the law respecting waiver. First Nat. Bank v. Gridley, 112 App. Div. (N. Y.) 398; Robinson v. Barnett, 19 Fla. 670. It was well settled that if an indorser with full knowledge of the laches of the holder in neglecting to protest a bill or note, unequivocally assents to continue his liability, or to be responsible, as though due protest had been made, he is held to have waived the right to object, and will stand in the same position as if he had been regularly charged by presentment, demand and notice.

How assent established. The assent must be clearly established. and will not be inferred from doubtful or equivocal acts or language. It has been frequently held that a promise by the indorser to pay the note or bill, after he has been discharged by the failure to protest it, will bind the indorser, provided he had full knowledge of the laches when the promise was made. A promise made under those circumstances affords the clearest evidence that the indorser does not intend to take advantage of the laches of the holder; and the law, without any new consideration moving between the parties, gives effect to the promise. The assent of the indorser to be bound, notwithstanding he has not been duly charged, may be established by any transaction between him and the holder, which clearly indicates this purpose and intention. Ross v. Hurd, 71 N. Y. 14, 18; Turnbull v. Maddux, 68 Md. 579; Lewis v. Brehme, 33 Md. 412; Bank v. Dibbrell, 91 Tenn. 301; Low v. Howard, 10 Cush. 159; Smith v. Lownsdale, 6 Oregon, 78; Whittaker v. Morrison, 1 Fla. 25.

Knowledge of facts. It must appear that the indorser had knowledge of the fact that the holder was in default. Thornton v. Wynn, 12 Wheat. 183; Hunter v. Hook, 64 Barb. 469; Nevins v. Moore, 221 Mo. 331; Gawtry v. Doane, 48 Barb. 148; Schierl v. Baumel, 75 Wis. 75; Glaser v. Rounds, 16 R. I. 235; Aebi v. Bank