
    Eliza Lee v. Emory O. Briggs.
    
      Notice of default on bond — Demand of payment.
    
    Where the- principal in a bond makes default in payment, the notice required to bind his surety need not be in writing unless so stipulated.
    Where a bond required that demand upon the surety be made within a given time, a demand by the obligee’s husband was held sufficient, though he did not expressly state that he made it in his wife’s behalf, where no question of his authority was made at the time, and the facts indicated that it was assumed that he made it in her name.
    Error to Yan Burén.
    Submitted Oct. 25.
    Decided Oct. 31.
    Assumpsit on special and common counts on appeal from a justice in an action brought by Mrs. Lee against Briggs upon a bond made by Harry T. Howe, with Briggs as surety, conditioned for the annual payment to Mrs. Lee of $50 during her life time, and providing that if Howe should fail in making payment at the time stipulated she should give notice to Briggs within five days afterwards, but that if she did not give him notice he should be released from payment,' though only for that year. Plaintiff recovered before the justice, but the judgment was reversed in the circuit court and she brings error. Submitted October 25. Decided October 31.
    
      Mills, Knoioles é Hilton for plaintiff in error.
    Yerbal notice of the dishonor of commercial paper is sufficient unless otherwise provided by statute, Wade on Notice,, 373; 2 Dan. Negot. Inst., 29; Williams v. Bank of U. S., 2 Pet., 96; Cuyler v. Stevens, 4 Wend., 566.
    
      Chandler Richards for defendant in error.
   Cooley, J.

We have not been able to discover in the proceedings before the justice any error of law which should reverse his judgment. The bond on which Briggs was sued did not require the notice to him of Howe’s default to be given in writing, and the evidence of verbal notice of the several defaults was ample. It is true that plaintiff’s husband, when giving notice, did not expressly say to Briggs he was giving it for and in the name of the plaintiff, but what took place between them shows that the fact was assumed, and no question whatever made concerning it. Neither was any question of his authority made before the justice; and under the circumstances it operated as an unfair surprise when the point was made by the affidavit for a certiorari, that Mr. Lee did not apprise Briggs that he came by plaintiff’s authority, to give the requisite notice. Briggs himself was a witness before the justice, and all the proceedings on the trial warranted the justice in supposing that the authority of Mr. Lee to make the demand was not disputed. His conclusion was right on the facts as they were presented to him; and that is sufficient to require the affirmance of his judgment. It will be so ordered; and plaintiff in error will recover costs of the circuit and of this court.

Campbell, C. J. and Graves, J. concurred; Marston, J. did not sit in this case.  