may discharge himself of damages and costs beyond the amount of the paper, by showing that he was ready at that place with funds. If a bill drawn payable generally be accepted payable at a particular place, we think the holder may and should so far regard this as non-acceptance, that he should protest and give notice. But if this limited acceptance is assented to and received, it must be complied with by the holder, and the bill must be presented for payment at that place, or the antecedent parties are discharged. If payable at a banker's or at the house or counting-room of any person, and such banker or person becomes the owner at maturity, this is demand enough; and if there are no funds deposited with him for the payment, this is refusal enough. If any house be designated, a presentment to any person there, or at the door if the house be shut up, is enough.

If this direction be not in the body of the note, but added at the close, or elsewhere, as a memorandum, it is not part of the contract, and should not be attended to.

If the payer has changed his residence, he should be sought for with due diligence; but if he has absconded, this is an entire excuse for non-demand. Where a bill or note is not presented for payment, or not presented at the time, or to the person, or in the place, or in the way, required by law, all parties but the acceptor or maker are discharged, for the reasons before stated.

5. Protest and Notice.-If a bill of exchange be not accepted when properly presented for that purpose, or if a bill or note, when properly presented for payment, be not paid, the holder has a further duty to perform to all who are responsible for payment. But this duty differs somewhat in the case of a bill or note. In case of non-payment of a foreign bill, there should be a regular protest by a public notary; but this, though frequently practiced, is not necessary in the case of an inland bill, or a promissory note, whether foreign or inland. But notice of non-payment should be given to all antecedent parties, equally, and in the same way, in the case of both bills and notes.

The demand and protest must be made according to the laws of the place where the bill is payable. It should be made by a notary-public, who should present the bill himself; but if there be no notary-public in that place, or within reasonable reach, it may be made by any respectable inhabitant in the presence of witnesses.

The protest should be noted on the day of demand and refusal; and may be filled up afterwards, even, perhaps, so late as at the trial.

The loss of a bill is not a sufficient excuse for not protesting it. But a subsequent promise to pay is held to imply, or be equal to, a previous protest and notice.

The notarial seal is evidence of the dishonor of a foreign bill; but not, it would seem, of an inland bill. And no collateral statement in the certificate is evidence of the fact therein stated; thus, the statement by a notary that the drawee refused to accept or pay because he had no funds of the drawer, is no evidence of the absence of such funds.

We repeat, that the general, and, indeed, universal duty of the holder of negotiable paper is, to give notice of any refusal to accept a bill or pay a bill or note to all antecedent parties. The reasons of this have been stated. These previous parties have engaged that the party who should accept or pay will do so; and they have further engaged that, if he refuses to do his

duty, they will be liable in his stead to the persons injured by his refusal. They have a right to indemnity or compensation from the party for whom they are liable, and to such immediate notice of his failure as shall secure to them an immediate opportunity of procuring this indemnity or compensation if they can. Nor is the question what notice this should be, left to be judged of by the circumstances of each case; for the law-merchant has certain fixed rules applicable to all negotiable paper.

Notice must given even to one who has knowledge. No particular form is necessary; it may be in writing, or oral; all that is absolutely essential is, that it should designate the note or bill with sufficient distinctness, and state that it has been dishonored; and also that the party notified is looked to for payment; but it has been held that the notice to the party, when given by the immediate holder of the bill, sufficiently implies that he is looked to. And notice of protest for non-payment is sufficient notice of demand and refusal. How distinctly the note or bill should be described, cannot be precisely defined. It is enough if there be no such looseness, ambiguity, or misdescription as might mislead a man of ordinary intelligence; and if the intention was to describe the true note, and the party notified was not actually misled, this would always be enough. The notice need not state for whom payment is demanded, nor where the note is lying; and even a misstatement in this respect may not be material, if it do not actually mislead.

No copy of the protest need be sent; but information of the protest should be given.

If the letter be properly put into the post-office, any miscarriage of the mail does not affect the party giving notice. The address should be sufficiently specific. Only the surname as "Mr. AMES"—especially if sent to a large city, might not, in general, be enough; thus, in an English case, where a letter, directed "Mr. HAYNES, Bristol," containing notice of the dishonor of a bill, was proved to have been put into the post-office, it was held that this was not sufficient proof of notice; the direction being too general to raise a presumption that the letter reached the particular individual intended. But where a party drew a bill, dating it generally "London," it was held that proof that a letter containing notice of the dishonor of the bill was put into the post-office addressed to the drawer at "London," was evidence to go to the jury that he had due notice of dishonor; because, if the party chooses to draw a bill, and date it so generally, it implies that a letter sent to the post-office, and directed in the same way, will find him. And if a letter, however generally directed, can be shown to have reached the right person at the right time, it is sufficient. The postmarks are strong evidence that the letter was mailed at the very time thèse marks indicate; but this evidence may be rebutted, that is, contradicted.

A notice not only may, but should, be sent by the public post. It may, however, be sent by a private messenger; but is not sufficient if it do not arrive until after the time at which it would have arrived by mail. It may be sent to the town where the party resides, or to another town, or to a more distant post-office, if it is clear that he may thereby receive the notice earlier. And if the notice is sent to what the sender deems, after due dili gence, the nearest post-office, this is enough. If the parties live in the same town, notice should not be sent by mail. In a case in Massachusetts, the court said, the general rule certainly is, that, when the indorser resides in the same place with the party who is to give the notice, the notice must

be given to the party personally, or at his domicil or place of business. Perhaps a different rule may prevail in London, where a penny post is established and regulated by law, by which letters are to be delivered to the party addressed, or at his domicil or place of business, on the same day they are deposited. And perhaps the same rule might not apply where the party to whom notice is to be given lives in the same town, if it be at a distant village or settlement where a town is large, and there are several post-offices in different parts of it. But in that case, the defendant had his residence and place of business in the city of Bangor, and the only notice given him was by a letter addressed to him at Bangor, and deposited in the post-office at that place. And this was insufficient to charge him as indorser.

The notice should be sent either to the place of business, or to the residence, of the party notified. But if one directs a notice to be sent to him elsewhere than at home, it seems that it may be so sent, and bind not only him, but prior parties, although time is lost by so sending it.

The notice should be sent within reasonable time; and in respect to negotiable paper, the law-merchant defines this within very narrow limits. If the parties live in the same town, notice must be given or sent so that the party to whom it is sent may receive the notice in the course of the day next after that in which the party sending has knowledge of the fact. If the parties live in different places, the notice must be sent as soon as by the first practicable mail of the next day.

Each party receiving notice has a day, or until the next post after the day in which he receives it, before he is obliged to send the notice forward. Thus, if there be six indorsers, and the note is due on the 10th of May, in New York, and is then demanded and unpaid, the holder may send it by any mail which leaves New York on the 11th of May, to the last indorser, wherever he lives; and that indorser may send it to the indorser immediately before him, by any mail on the day after he receives it; and so may each of the parties receiving notice; and all the parties receiving notice in this way will be held. So, too, a banker, with whom the paper is deposited for collection, is considered a holder, and entitled to a day to give notice to the depositor, who then has a day for his notice to antecedent parties. The different branches of one establishment have been held distinct holders for this purpose, and each to be entitled to a day.

If notice be sent by ship, it is said that it may be delayed until the next regular ship; but this is not quite certain; or, rather, the rule can hardly as yet be considered fixed and definite. It should be sent by the first safe opportunity.

Neither Sunday nor any legal holiday is to be computed in reckoning the time within which notice must be given.

There is no presumption of notice; and the plaintiff must prove that it was given, and was sufficient. Thus, proving that it was given in "two or three days," is insufficient, if two would have been right, but three not.

Notice should be given only by a party to the instrument, who is liable upon it, and not by a stranger; and it has been held that notice could not be given by a first indorser, who, not having been notified, was not himself liable. A notice by any party liable will operate to the benefit of all antecedent or subseqent parties; that is, will hold them all to the original holder of the note, if the original holder gave notice properly to the party near

est to him. The notice may be given by any authorized agent of a party who could himself give notice.

Notice must be given to every antecedent party who is to be held. And we have seen that this may be given by a holder to the first party, liable, and by him to the next, &c. But the holder may always give notice to all antecedent parties; and it is always prudent, and in this country, we believe, quite usual, to do so. For the holder loses all remedy against all those who are discharged by the failure of any one receiving notice to transmit it properly. But if a holder undertakes to notify all the antecedent parties, he must notify all as soon as he was obliged to notify the party nearest to him; that is, the day after the dishonor of the note. We mean by this, that every party has a day; so that, if there be six indorsers, if the first indorser is notified on the seventh day from the dishonor, it is enough, if the holder took his day to notify the sixth indorser, and that indorser his day to notify the fifth, and so on. But the holder has nobody's day but his own; and if he undertakes to notify all the parties, he must notify them all on the first day after the non-payment.

Notice may be given personally to a party, or to his agent authorized to receive notice, or left in writing at his home or place of business. If the party to be notified is dead, notice should be given to his personal representatives. A notice addressed to the "legal representative of," &c., and sent to the town in which the deceased party resided at his death, has been held sufficient. But a notice addressed to the party himself, when known to be dead, or to "the estate of," &c., would not be of itself sufficient, but might become so with evidence that the administrator or executor actually received the notice.

If two or more parties are jointly liable on a bill as partners, notice to one is enough.

One transferring by delivery without indorsement a note or bill payable to bearer, is not generally entitled to notice of non-payment, because, generally, he is not liable to pay such paper; but if the circumstances of the case are such as to make him liable, then he must have notice, but is entitled not to the exact notice of an indorser, but only to such reasonable notice as is due to a guarantor. If, for instance, the paper was transferred as security, or even in payment of a pre-existing debt, this debt revives if the bill or note be dishonored; and therefore there must be notice given of the dishonor. In general, a guarantor of a bill or note, or debt, is not entitled to such strict and exact notice as an indorser is entitled to, but only to such notice as shall save him from actual injury; and he cannot make the want of notice his defence, unless he can show that the notice was unreasonably withheld or delayed, and that he has actually sustained injury from such delay or want of notice. If an indorser give also a bond, or his own note, to pay the debt, he is not discharged from his bond or note by want of

notice.

In general, all parties to negotiable paper, who are entitled to notice, are discharged by want of notice. The law presumes them to be injured, and does not put them to proof. It has been held, however, that the drawer of a check not notified of non-payment is thereby discharged only to the extent of the loss which he actually sustains.

If one who is discharged by want of notice nevertheless pays the bill or note, he may call upon the antecedent parties, if due notice has been given to them, and if, by taking up the paper, he acquires the rights of the hold

er; or if he, having been indorsee, indorsed the paper over; for he is then remitted (or restored) to his rights and position as indorsee.

The right to notice may be waived by any agreement to that effect prior to the maturity of the paper. It is quite common for an indorser to write, "I waive notice," or, "I waive demand," or some words to this effect. It should, however, be remembered, that these rights are independent, and one does not imply the other. A waiver of demand may imply a waiver of notice of non-payment; but a waiver of notice of non-payment certainly does not imply a waiver of demand; therefore, if an indorser writes on the note, "I waive notice," still he will be discharged if there be not a due demand on the maker. So if a drawer countermands his order, the bill should still be presented, but notice of dishonor need not be given to the drawer. Or, if a drawer has no funds, and nothing equivalent to funds, in the drawee's hands, and would have no remedy against the drawee or any one else, as the drawer cannot be prejudiced by want of notice, it is not necessary to give him notice. But the indorser must still be notified; and a drawer for the accommodation of the acceptor is entitled to notice, because he might have a claim upon the acceptor.

If a drawer make a bill payable at his own house, or counting-room, this has been said to be evidence to a jury that the bill was drawn for his accommodation, and that he expects to provide for the payment, and is not entitled to notice of dishonor; but it would be safer to give notice.

Actual ignorance of a party's residence justifies the delay necessary to find it out, and no more; and after it is discovered, the notifier has the usual time.

Death, or severe illness, of the notifier or his agent, is an excuse for delay; but the death, bankruptcy, or insolvency of the drawee is no excuse.

As the right to notice may be waived befor maturity, so the want of notice may be cured afterwards by an express promise to pay; and an acknowledgment of liability, or a payment in part, is evidence, but not conclusive evidence, of notice; the jury may draw this conclusion from part payment, but are not bound to, even if the evidence be not rebutted. If the promise be conditional, and the condition be not complied with, the promise has been held to be still evidence. Nor is it sufficient to avoid such promise, that it was made in ignorance of the law; it must be made, however, with a full knowledge of the facts. The following distinction seems to be drawn; if the fact of neglect to notify appears, the party entitled to notice is not bound by his subsequent promise, unless it was made with a knowledge of the neglect; but if the fact of neglect does not appear, the subsequent promise will be taken as evidence that there was no neglect, but sufficient notice. And a promise to pay, made in expectation of the dishonor of a bill or note, will be construed as a promise on condition of usual demand and notice, and, of course, does not waive them. And, as we have remarked, no waiver of any right growing out of any other previous negligence or omission to perform some duty, can affect any party but him who makes the waiver.