Warren v. Gilman , 17 Me. 360 ( 1840 )

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.