
    Henry Warren vs. Allen Gilman.
    Where a bill is left in a bank for collection, although the bank has no interest in it, yet for the purposes of making a demand, and of receiving and transmitting notices, they are to be considered the real holders.
    In the negotiation of this business, the cashier is the regularly authorized agent of the bank; and any communications affecting them, are properly addressed to him in his official capacity.
    A notary employed for that purposo by tlio cashier of a bank, to which the- . bill has been indorsed and transmitted for collection only, has sufficient authority to make a demand, and to give notice.
    If due notice of the presentment and non-payment of a bill be given to an. indorser, it is not necessary that he should also be notified, that the holder will look to him for payment.
    Where a bill which was drawn, acbepted and indorsed by residents of Bangor and made payable at a bank in Boston, was indorsed to a bank in Bangorr and by that bank indorsed and transmitted to a bank in Boston for collection,, and was by direction of the cashier of the latter bank duly presented there for payment by a notary, and notices thereof and of non-payment were immediately made out by him to all the prior parties, and transmitted by the first mail to th'e cashier of the Bangor bank; and where on the same morning the notices reached Bangor, the cashier took them from the post-office, and directed one to the indorser, then a resident of that city, and immediately replaced it in the post-office ; it was held, that as the notice came from the notary in Boston, that this mode of transmitting it was sufficient.
    This action was referred to J. Cutting, Esq. who awarded that the plaintiff should recover of the defendant the sum of $481,93, and,costs, unless from facts proved before him, and which were stated in his award, the Court should be of the opinion that the plaintiff could not maintain the action.
    
      The action was brought against the defendant as the indorser of a draft of the following tenor. “ Bangor, June 30, 1836. Thirty days from date, value rec’d, please pay to the order of Allen Gilman, at the Suffolk Bank in Boston, four hundred dollars.
    
      “ Yours, d¿c. Samuel A. Gilman.
    
    
      “ Charles Gilman, Bangor, Me.”
    
    The bill was accepted by C. Gilman, and indorsed by the defendant, and also as follows. “ Pay M. S. Parker, Cashier, or order, John Wyman, Cashier.” The plaintiff proved by the deposition of William Stevenson, a notary public residing in Boston, as well as by the original protest of Stevenson, if admissible, that on the second day of August, 1836, the bill was duly presented by him at the Suffolk Bank for payment, which was refused, whereupon he duly protested the bill for non-payment, and sent notices of the non-payment thereof to the drawer, accepter and indorser, to John Wyman, Esq. Cashier, per mail to Bangor, Maine, requiring payment of them respectively, which bill was presented and protested by Stevenson, at the request of the said M. S. Parker, Cashier, the last indorsee. John Wyman testified, to be received if admissible, that the bill was left by the plaintiff in the Penobscot Bank in Bangor for collection, on the 16th day of July, 1836, and that on the 19th day of the same month, he, as cashier of the Penobscot Bank indorsed the bill and forwarded it to the Suffolk Bank for collection; that after the bill was protected, it was returned to him, as well as the notices spoken of by Stevenson ; that he received the notices from the post-office in Bangor on the morning of the fifth of August, 1836, inclosed in a letter from Stevenson, but was unable to fix the time when he received them, otherwise than that he knew he received them in due course of mail, which would be on the morning of the 5th ; that on the same morning on which he received them he directed and left the one for Samuel A. Gilman at his store in ■ Bangor ; and that he directed the other for the defendant, and either gave it to him in person on the same morning of receiving it, or having sealed and directed it to him, put it into the post-office in Bangor that morning. John Bright, assistant postmaster at Bangor, testified, that during the months of July and August, 1836, the defendant kept a box at the post-office from which he was in the habit of daily receiving his letters; that on the fifth day of August, 1836, the western mail arrived at five o’clock, A. M. which was about the usual time-at that season. All the' parties to the bill resided in the village of Bangor, except M. S. Parker, whose residence was in Boston.
    
    
      Rogers, for the defendant, objected to the right of the plaintiff to recover: —■ ’ ,
    1. That it should affirmatively appear, and not be left" to inference, when the notices were put into- the mail, and when received. Notice'is of the essence of the contract, and ought not to rest upon presumption and inference. 7 Hals. 268 ; 3 Gill fy John. 474.
    2. ‘Wyman1 was not a party to the bill, and upon its' being- returned to' him, he could not have maintained an action upon it. Chanoine v. Fowler, 3 Wend,' 173; Stanton v. Blossom, 14 Mass. R. 116. The notices should have been sent to the Penobscot Bank. ■Wyrhan'-wz.s a mere agent, and not a party, and notice through him to the defendant should have been as early, as if sent directly through the mail. Sewall v. Russell, 8 Wend. 27ff.
    3-. Notice was not sufficient, ‘being only, -that the bill was protested for non-payment, and not that the -holder looked to -him for payment. ' •
    4. The notice was not sufficient, being left at the post-office in the. same city, and not at the dwellinghpuse pr place of business of the defendant. 10 Johns. R. 491; 20 Johns. R. 372; 1 Conn. R. 329; 3 Conn. R. 89; 1 Stark. R. 314; 2 Peters, 96.
    5. As a notice from. Stevenson, it was not received in season. Being put into the post-office in Bangor after the distribution of the mail, it, would not go into the defendant’s box until the next day, one day'too late, As á notice from Wyman, it is defective in coming frórri a stranger who could maintain no action upon it, and because it was Stevenson’s,, and not his. Chitty on Bills, (8th Am. from 8th Lon. Ed.).527.
    •6. If Wyman was not a party to the bill, but a. stranger, the protest is defective in not showing notice; and this defect cannot be supplied by-parol. Phoenix Bank v. Bussey, 12 Pick. 483.
    
      J. Plodsdon, for the plaintiff,
    contended, that as the case was referred in the usual way to the referee, and he had decided in favor of the plaintiff, unless the Court should come to a conclusion that he was wrong in his decision, that the Court ought not to re-examine the case, but order judgment on the report. 3 Mcesoti W. 332. But if the question is to be decided by the Court, as referees, they should order judgment for the plaintiff. The first objection is* founded on an erroneous view of the facts. The witnesses are positive and direct in their statements. As to the second : Wyman was the immediate indorser to the Suffolk Bank, and the notices were to him in the usual and proper manner. A cashier receiving a bill for collection, is entitled to the same time as an owner, to notify prior indorsers. Mead v. Engs, 5 Cowen, 303.
    As to the third. It is enough to notify the party to be charged on the non-payment. Lindenberger v. Beall, 6 Wheat. 104 ; Miller v. Ilacl-cley, 5 Johns. R. 375; 11 Wheat.' 431. As to tlie fourth. Notice to an indorser may be by mail in all cases except where the parties reside in the place where the bill is made payable. 3 Conn. R. 489; l Cam/pb. 246. As to tbe fifth and sixth, ,he merely cited Dickens v. Beall, 10 Peters, 578.
   The opinion of the Court was by

Weston C. J.

Where a bill is left in a bank for colledtion, although the bank has no interest in it, yet for the purpose of receiving and transmitting notices, they are to be considered as the real holders. Mead v. Engs, 5 Cowen, 308, and the cases there cited. In the negotiation of this business, the cashier is the regularly authorized organ of the bank, and whatever is done by him -in that capacity is the act of the bank ; and any communications affecting them, are properly addressed to him in his official capacity.

It was never doubted, that notice might be, given by the holder or his agent, but in Chanoine v. Fowler, 3 Wend. 173, it was held, that it was not absolutely necessary that it should come from the holder, but that it might be given by any one, who is a party to the bill, and who would on the same being returned to him, have a right of action on it. In Stanton & al. v. Blossom & al. 14 Mass. R. 116, it was held, that notice must come from the holder of tbe bill, or from one authorized by him, or from one liable as indorser.

The bill in question was left for collection in' the Penobscot Bank. The cashier of that bank, in pursuance of the trust confided in him, indorsed the bill to the cashier of the Suffolk Bank, where it was made payable, and remitted it to the latter bank for collection. According to the usage in these cases, we doubt not both the cashiers became, for the purpose of collection, nominally parties to the bill. Hartford Bank v. Barry, 17 Mass. R. 94. But if the plaintiff, who had the beneficial interest, is to be regarded as the bolder, the cashiers became his authorized agents, acting in behalf of the banks they respectively represented. ' '

Mr. Stevenson, the notary employed on this occasion, was duly called upon to -act in his official capacity by the cashier of the Suffolk Bank. Notices, coming from him, affect the parties intended to be charged. It appears from the protest, as well as from the deposition .of the notary, that oil the second of August, 1836, the day of the maturity of the bill, the notary demanded payment at the Suffolk Bank, which being refused, and the bill, duly protested; he thereupon sent notices'by mail, to Wyman, the cashier of the Penobscot Bank, at Bangor. There is no other'date, to which these proceedings áre referred, but the second of August, and the fair import of the language seems to require, that it should be,so understood. But if any doubt could be raised upon this point, we think tha,t it is rendered certain by the testimony o^ Wyman. ' ■

If the notary forwarded'his notices by the first mail, after the protest, they- must have arrived on the morning of the fifth, and such Wyman testifies was the fact. He adds,' that the-only reason he had,.for being able so to testify, was, that he knew the notices owere received in due course of mail. And he positively testifies therefore, that they must have arrived on the morning of the fifth. He explains what he means by due course of mail. Without such explanation, so far as it depends upon his testimony, the point might have been left uncertain; but as explained, his testimony proves, that the notices were received on the morning, of the fifth, which must ha.ve been the first mail after the protest.- • •

The notice for the defendant, enclosed by the notary, was either delivered to him in hand, or after being sealed and directed, left for him at the post-office, by Wyman, the same morning it arrived. The notice is not proved, so- as to charge the defendant, unless either mode was sufficient. If delivered to him in person there could be no question; and we are of opinion, that the notice coming from the notary, the post-office was a proper channel of communication.

No want of diligence is imputable to the cashier. He received and opened the whole package directed to him, and the same morning returned to the post-office, with proper directions, the notice enclosed, prepared for the defendant. Whatever strictness of construction, on the question of notice, may have obtained upon some points, it appears to us, that the notice to the defendant is sufficiently made out, by proving, that having been prepared and duly forwarded by the notary, it was ready for him, properly directed, at the post-office in Bangor, on the morning of the fifth of August.

It is objected, that it does not appear that the defendant was apprized by the notice, that the holder looked to him for payment. We are not aware that this formality is required. He was entitled to notice of the dishonor' of the bill; but was bound to know the legal consequences. The rights of the holder would remain the same, whether he intended to enforce them or not. In the Bank of the United States v. Carneal, 2 Peters, 543, it was held, that the holder need not notify an indorser, that he held him liable.

Exceptions overruled.  