by "reasonable intendment." 61 Though properly understood, the sense of the two phrases is pretty much the same, for “necessary implication means not natural necessity, but so strong a probability that an intention contrary to that which is imputed cannot be supposed." 9 62 But it is quite clear that it will not be sufficient merely to state in the notice the fact of nonpayment of the bill or note, without stating that payment was demanded of the maker, drawee, or acceptor, as the case may be, or stating some legal excuse for not making such demand. It should state whether or not the paper has been presented for payment; and if not, why not, for the reason that the indorser has a right to be informed of the facts on which the liability depends, to the end that he may judge for himself whether or not it is his duty to pay it. 63

The mere

§ 983. What is sufficient intimation of dishonor. statement that the bill or note is unpaid is not alone sufficient to intimate by "reasonable intendment" that the bill or note has been dishonored, for the holder may not have used due diligence in presenting it; and therefore something more must appear, ac

61. Hedger v. Steavenson, 2 M. & W. 799; Lewis v. Gompertz, 6 M. & W. 402; Byles on Bills (Sharswood's ed.), 413, note 9, and [*265], 416; Chitty on Bills [466], 525; Edwards on Bills, 595.

62. Wilkinson v. Adams, 1 Ves. & B. 466, Lord Eldon; Hedger v. Steavenson, 2 M. & W. 799, 5 Dowl. 771, Parke, B.

63. Page v. Gilbert, 60 Me. 488 (1872), Walton, J.: "A notice to the indorser of a note, which merely informs him of the nonpayment of the note, and demands payment of him, without stating that payment has been demanded of the maker, or giving any legal excuse for not demanding it of him, is not sufficient to charge the indorser. The notice should state whether or not the note has been presented to the maker for payment; and if not, why not? The indorser has a right to be informed of those facts on which his liability depends, to the end that he may judge for himself whether or not it is his duty to pay the note. A notice which merely states that the note has not been paid, without stating whether or not it has been presented for payment, or giving any excuse for not presenting it, is not sufficient; for such a notice may be strictly true in every particular, and yet the indorser not be liable. When the official certificate of a notary public states that he 'duly' notified the indorser, it is sufficient prima facie to charge the indorser; because the notary could not properly say he had 'duly' notified him unless he had given him notice of a demand as well as of nonpayment of the note." Gilbert v. Dennis, 3 Metc. (Mass.) 495; Union Bank v. Humphreys, 48 Me. 172; Strange v. Price, 2 Perry & D. 278.

cording to the weight and number of authorities on the question," though there is authority to the contrary, which deprecates overnicety, and declares such rulings to be severe technicalities. But such a notice may suffice when the paper is payable at a bank, and the notice emanates from the bank.66 Nor will it be sufficient to say simply that payment was demanded, unless it appear also that it was presented.67 But the direct statement that the instru

64. Phillips v. Gould, 8 Car. & P. 355 (34 Eng. C. L.); Strange v. Price, 10 Ad. & El. 125 (37 Eng. C. L.); Furze v. Sharwood, 2 Q. B. 388 (42 Eng. C. L.) ; Messenger v. Southey, 1 M. & G. 76 (39 Eng. C. L.); Boneton v. Welsh, 3 Bing. N. C. 688 (32 Eng. C. L.); Hartley v. Case, 4 B. & C. 339; Gilbert v. Dennis, 3 Metc. (Mass.) 495; Townsend v. Lorain Bank, 2 Ohio St. 355; Armstrong v. Thurston, 11 Md. 148; Graham v. Sangston, 1 Md. 60; Arnold v. Kinloch, 50 Barb. 44; Ething v. Schuylkill Bank, 2 Barr, 356; Sinclair v. Lynch, 1 Spears, 244: Clark v. Eldridge, 13 Metc. (Mass.) 96; Pinkham v. Macy, 9 Metc. (Mass.) 174; Lockwood v. Crawford, 18 Conn. 361. In Mills v. Bank of the United States, 11 Wheat. 431, cited in a previous note, it is said obiter by the Supreme Court that "the mere naked fact of nonpayment is sufficient." This dictum, as explained in Gilbert v. Dennis, 3 Metc. (Mass.) 495, is reconcilable with the text, and we concur fully in what is said by Shaw, C. J., in the latter case. Says he, speaking of the case of Mills v. Bank of the United States: "In the case then before the court, the notice contained a full and precise statement of the presentment, demand, and nonpayment by the maker. The objection with which the court was dealing was, that the notice did not specify the time and place of demand. The answer made was, that such particularity was unnecessary, and that it is sufficient that it states the fact of nonpayment. Applied to the facts of that case, it may be construed to mean nonpayment after due presentment. So when the learned judge speaks of the practice of commercial cities, he speaks of notice of the mere naked nonpayment, in contradistinction to stating in the notice the mode and place of demand. That such is the meaning may be inferred from the passage before cited, in which he speaks of the object of the notice, which is to inform the indorser that payment has been refused by the maker. Refusal implies nonpayment on demand, or under such circumstances as render a presentment and demand unnecessary. Indeed, in many cases, simple notice of nonpayment is notice of dishonor; as where the note is in terms, or by usage or special agreement, payable at a bank, a notice stating the date and terms of the note, showing that it has become due, and averring that it is unpaid, is equivalent to an averment that it is dishonored."

65. Cromer v. Platt, 37 Mich. 132. See 26 Am. Rep. 505, where it is shown that this decision is but slenderly supported by precedent. But in Paul v. Joel, 4 H. & N. 355 (1859), where to the statement that the bill was dishonored was added "payment is requested before 4 o'clock," notice was held sufficient. 2 Ames on Bills and Notes, 378.

66. See previous note, and Gilbert v. Dennis, 3 Metc. (Mass.) 495. 67. Musson v. Lake, 4 How. 262.

ment has been "dishonored" is sufficient, that word including the presentment and demand which were, necessary;68 and there are other words which, coupled with the statement of nonpayment, indicate sufficiently a dishonor. Thus: "Your bill is unpaid, noting 5s." or, "is this day returned with charges;" 70 or, "noting expenses, etc.;" 71 or, "with charges or protested exchange." 72 The expression "returned unpaid " was held insufficient to indicate dishonor at one time;73 but subsequently the opposite view prevailed.74

69

And likewise "protested " 75 is sufficient in the case of promissory notes and inland bills,76 as well as of foreign bills." Where the notice of the maker's nonpayment of an instalment states that the holder looks to the indorser for payment of the instalment and of the interest on the note, the surplusage does not vitiate it.78

§ 984. Whether misstatement of notice will vitiate it. There is conflict of authority on the question whether or not the indorser is discharged by a misstatement in the notice of the time of presentment or protest, when in fact there had been no irregularity.

68. Stocken v. Collin, 9 C. P. 653 (38 Eng. C. L.), 7 M. & W. 515; Woodthorpe v. Lawes, 2 M. & W. 109; Shelton v. Braithwaite, 7 M. & W. 436; Edmunds v. Cates, 2 Jur. 183; Lewis v. Gompertz, 6 M. & W. 400; King v. Bickley, 2 Q. B. 419; Rowland v. Sprinjett, 14 M. & W. 7 (7 Eng. C. L.); Smith v. Boulton, 1 Hurl. & W. 3.

69. Armstrong v. Christiana, 5 C. B. 687 (57 Eng. C. L.); Hedger v. Steavenson, 2 M. & W. 799, 5 Dowl. 771.

70. Grudgeon v. Smith, 6 Ad. & El. 499 (33 Eng. C. L.), 2 Nev. & P. 303; Everard v. Watson, 1 El. & Bl. 801.

71. Everard v. Watson, 1 El. & Bl. 801; Mellersh v. Rippen, 7 Exch. 578. 72. De Wolf v. Murray, 2 Sandf. 166.

73. Boulton v. Welsh, 3 Ping. N. C. 688.

74. Robson v. Curlewis, Car. & M. 378, 2 Q. B. 421.

75. Wheaton v. Wilmarth, 13 Metc. (Mass.) 422; Saltmarsh v. Tuthill, 13 Ala. 390; McFarland v. Pico, 8 Cal. 636; Eastman v. Turman, 24 Cal. 383. See also Burkham v. Trowbridge, 9 Mich. 209; Edwards on Bills, 295; First Nat. Bank v. Hatch, 78 Mo. 23, citing the text.

76. Mills v. Bank of the United States, 11 Wheat. 431; Bank of Alexandria v. Swann, 9 Pet. 33; Brewster v. Arnold, 1 Wis. 264; Kilgore v. Buckley, 14 Conn. 362; Smith v. Little, 10 N. H. 526; Howe v. Bradley, 19 Me. 31; Cook v. Litchfield, 5 Sandf. 330, 9 N. Y. 279; Youngs v. Lee, 12 N. Y. 551; Housatonic Bank v. Laflin, 5 Cush. 546; Beals v. Peck, 12 Barb. 445; Denegre v. Hiriat, 6 La. Ann. 100; Burgess v. Vreeland, 4 N. J. 71. Contra, Platt v. Drake, 1 Doug. 296, overruled by Burkham v. Trowbridge, 9 Mich. 209.

77. Crawford v. Branch Bank, 7 Ala. 205; Spies v. Newbury, 2 Doug. 495. 78. Fitchburg Mutual Fire Ins. Co. v. Davis, 121 Mass. 121.

79

Some cases hold that, if he were not misled or deceived, the notice is valid; but others decide it to be invalid, on the ground that it, in fact, communicates to the party that he is discharged in stating presentment or protest at an improper time.80 But it is obvious that the holder in such a case claims that the party is not discharged, and he is notified that he is held liable, and looked to for payment. He ought not to be misled by the mere circumstance of a mistaken date, which on its face would seem to be a mistake. And if, in fact, there was due presentment and protest in the proper time, it would be adopting a technicality quite opposed to the uniform liberal spirit of the law of notice to discharge the indorser on account of it.

§ 985. In the fourth place, as to the statement that the holder looks to the party to whom notice is sent for payment, the express statement in the notice to this effect was, as it might seem, formerly held necessary;81 but the prevailing rule at the present time is, that the mere fact of giving notice to the party implies that he is looked to for payment.82

79. Ontario Bank v. Petrie, 3 Wend. 456; Crocker v. Getchell, 23 Me. 392; Byles on Bills (Sharswood's ed.) [*269], 417, note 1; Journey v. Pierce, 2 Houst. 176.

80. Routh v. Robertson, 11 Smedes & M. 362; Etting v. Schuylkill Bank, 2 Pa. St. 355; Ransom v. Mack, 2 Hill, 587; Townsend v. Lorain Bank, 2 Ohio St. 345; 1 Parsons on Notes and Bills, 476. In Reynolds v. Appleman, 41 Md. 615, this view seems to be approved, but it was held inapplicable to the case considered. In this case the notarial certificate was dated December 23d, and stated that the note "is delivered to me for protest, the same not being paid, payment thereof having been demanded and refused." The court said, through Bartel, C. J.: "This implies, in the absence of any statement to the contrary, that the demand was duly made at the maturity of the note," the note fell due and was duly presented on December 22d, as was proved by parol testimony. Edwards on Bills, 593.

81. Tindal v. Brown, 1 T. R. 169; Solarte v. Palmer, 7 Bing. 530 (20 Eng. C. L.).

82. Bank of Cape Fear v. Seawell, 2 Hawks, 560; Warren v. Gilman, 5 Shep. 360; Shrieve v. Duckham, 1 Litt. 194; Cowles v. Harts, 3 Conn. 517; Townsend v. Lorain Bank, 2 Ohio St. 345; Burgess v. Vreeland, 4 N. J. 71; Barstow v. Hiriart, 6 La. Ann. 98; Story on Promissory Notes, § 353; Townsend v. Dry Goods Co., 85 Mo. 508, citing the text; Furze v. Sharwood, 2 Q. B. 388 (42 Eng. C. L.); Chard v. Fox, 14 Q. B. 200 (68 Eng. C. L.); Metcalf v. Richardson, 20 Eng. L. & Eq. 301; Miers v. Brown, 11 M. & W. 372; Caunt v. Thompson, 7 C. B. 400 (62 Eng. C. L.); King v. Buckley, 2 Q. B. 419 (42 Eng. C. L.); Edwards on Bills, 598, 660.

On this subject it has been said by the United States Supreme Court: 83 "A suggestion has been made at the bar, that a letter to the indorser, stating the demand and dishonor of the note, is not sufficient, unless the party sending it also informs the indorser that he is looked to for payment. But when such notice is sent by the holder, or by his order, it necessarily implies such responsibility over. For what other purpose could it be sent? We know of no rule that requires any formal declaration to be made to this effect. It is sufficient, if it may be reasonably inferred from the nature of the notice."

986. Whether notice must state fact of protest.- When a protest is necessary in order to charge the drawer or indorser, the notice should state that the bill was protested, in order to show that his liability was fixed; but if, in point of fact, the bill was noted for protest, no statement as to protest in the notice is necessary.84 And in one case, where the notice stated expressly that the bill had not been protested, it was held by the court, that it might mean no more than that the protest had not been extended, and it might still be understood that it had been noted.85 Where the party receiving notice is abroad, it has been said that the notice should mention the protest, since he could not readily ascertain as to the fact by inquiry,86 but this doctrine does not seem to have become engrafted into the principles of the law merchant.

It is now settled — though the contrary at one time was maintained that it is not necessary that a copy of the protest of a foreign bill should accompany notice of its dishonor.87 But information of the protest should be sent if the party to whom notice is transmitted resides abroad.88

83. Bank of the United States v. Carneal, 2 Pet. 543.

84. Ex parte Lowenthal, L. R., 9 Ch. 591; 2 Ames on Bills and Notes, 452. Contra in Georgia; Continental Nat. Bank v. Folsom, 67 Ga. 624.

85. Brown v. Dunbar, Thompson on Bills, 332.

86. Lord Ellenborough in Rollins v. Gilson, 3 Campb. 334, 1 Maule & S. 288; Thompson on Bills, 334.

87. Goodman v. Harvey, 4 Ad. & El. 870 (31 Eng. C. L.); Wallace v. Agry, 4 Mason, 336; Story on Bills, § 302; ante, § 943.

88. See Rogers v. Stephens, 2 T. R. 713; Byles on Bills (Sharswood's ed.) [*270], 418.