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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 subsequent parties; that is, will hold them all to the original holder of the note, if the original holder gave notice properly to the party nearest 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 nex:, &c. But the holder may always give notice to all antecedent parties; and it is always prudent, and in this country, 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 da, 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; but, if the indorsers are not partners, notice should be given to each.
One transferring by delivery, without indorsement, a note or bill payable to bearer, is not generally entitled to notice of nonpayment, 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 there fore 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.
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 notice of non-payment 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. And it has been held that a waiver of protest is a waiver of demand, but not of notice. So if a drawer countermands his order, the bül should still be presented, but notice of dishonor need not be given to the drawer. Or, if a drawer has no funds, and nothing equiva. ient 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 accepter is entitled to notice, because he might have a claim upon the acceptor.
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 of a bill is no excuse.
As the right to notice may be waived before 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, oi notice; the jury may draw this conclusion from part payment, but are not bound to, even if the evidence be not rebutted. Ithe promise be conditional, and the condition be not compliec. with, the promise has been held to be still evidence of protest Nor is it sufficient to avoid such promise, that it was made ir ignorance of the law; but it is void if made in ignorance of the fact of non-notice.
THE RIGHTS AND DUTIES OF THE INDORSER.
ONLY a note or bill payable to a payee or order is, strictly speaking, subject to indorsement. Those who write their names on the back of any note or bill are indorsers in one sense, and are sometimes called so; but are not meant in the law-merchant by the word “indorsers."
The payee of a negotiable bill or note—whether he be also maker or not-may indorse it, and afterwards any person or any number of persons, may indorse it. The maker promises to pay to the payee or his order; and the indorsement is an order on the maker to pay the indorsee, and the maker's promise is then to pay the note to him. But if the original promise was to the payee or order, this "or order,” which is the negotiable element, passes over to the indorsee, though not written in the indorsement, and the indorsee may indorse, and so may his indorsee, indefinitely.
Each indorser, by his indorsement, does two things: first, he orders the antecedent parties to pay his indorsee; and next, he engages with his indorsee, that, if they do not pay, he will.
If the words "to order," or "to bearer," are omitted acci. dentally, and by mistake, they may be afterwards inserted without injury to the bill or note; and whether a bill or note is negotiable or not, is a question of law.
By the law-merchant, bills and notes which are payable to order can be effectually and fully transferred only by indorse. ment. This indorsement may be in blank, or in full. The writing of the name of a payee,-either the original payee or an indorsee, with nothing more, is an indorsement in blank; and a blank indorsement makes the bill or note transferable by delivery, in like manner as if it had been originally payable to bearer. After a note has been indorsed by a payee, any person may write his name on the note under that of the payee, and be held as indorser,-because any subsequent holder may write over the name of the first indorser a direction to pay the note to the next signer, and this makes the next signer an indorsee, and so gives him a right to indorse; and he or any holder may write over his name an order to pay the holder, or anybody else. If the indorsement consist not only of the name, but of an order above the name to pay the note to some specified per. son, then it is an indorsement in full, and the note can be paid to no one else unless that person indorses it; nor can the property in it be fully transferred, except by his indorsement; and his indorsee may again indorse it in blank or in full. If the incorsement is, Pay to A B only, or in equivalent words, A B is ndorsee, but cannot indorse it over.
Any holder for value of a bill or note indorsed in blank, whether he be the first indorsee or one to whom it has come through many hands, may write over any name indorsed an
order to pay the contents to himself; and this makes it a special indorsement, or an indorsement in full. This is often done for security; that is, to guard against the loss of the note by accident or theft. For the rule of law is, that negotiable paper transferable by delivery (whether payable to bearer or indorsed in blank) is, like money, the property of whoever receives it in good faith. The same rule has been extended in England to exchequer bills; to public bonds payable to bearer; and to East India bonds; and we think it would extend here to our railroad and other corporation bonds, and, perhaps, to all such instruments as are payable to bearer, whether sealed or not, and whatever they may be called. If one has such an instrument, and it is stolen, and the thief passes it for consideration to a bona fide holder, this holder acquires a legal right to it, because the property and possession go together. But if the bill or note be specially indorsed, no person can acquire any property in it, except by the indorsement of the special indorsee. It may
be well to remark here, that the finder of negotiable paper, as of all other property, ought to make reasonable en. deavors to discover the owner, and is entitled to use the thing found as his own only when he has made such endeavors unsuccessfully. If he conceals the fact of finding, and appro priates the thing to his own use, he is liable to the charge of larceny or theft.
The written transfer of negotiable paper is called an indorse. ment, because it is almost always written on the back of the note; but it has its full legal effect if written on the face.
Joint payees of a bill or note, who are not partners, must all join in an indorsement.
An indorser may always prevent his own responsibility by writing “without recourse," or other equivalent words, over his indorsement; and any bargain between the indorser and indorsee, written or oral, that the indorser shall not be sued, is available by him against that indorsee; but he cannot make this defence against subsequent indorsees who had no notice of the bargain before they took the note.
Every indorsement and acceptance admits conclusively the genuineness of the signature of every party who has put his