Arnold v. Mundy, 10 Am. Dec. 385. If, then, alluvion is formed by such a river, it will, provided that it does not extend beyond the middle of the stream, but raise above the level of the water what was already vested in the owner of the shore. The only result, therefore, of such alluvion will be to shift the position of the filum aquæ; and as it would be productive of no good result to consider the boundary line of one riparian proprietor as being within twenty yards of his shore line, while that of the proprietor on the opposite bank would be distant two or three times that distance from his bank, and as it would be impossible to locate any such line, the courts must willingly allow alluvion formed on these streams to shift this filum aquæ. On the other hand, even if the title to the bed of these streams be considered in the state, there exists no reason why the state, which affords no redress for the loss that is occasioned by the cutting of a river on one of its banks, should claim the deposit on the other bank, which, perhaps, is a result of the very overflow of the first. Certain it is that, in the case of rivers, the word "imperceptible" is referred by the courts to the mode of accretion, not to the result. It will be sufficient if the deposit can not be detected by the eye in any moment of time: Lovingston v. St. Clair, 64 Ill. 56; S. C., 23 Wall. 68; Kraut v. Crawford, 18 Iowa, 554; Benson v. Morrow, 61 Mo. 352, where the court even denounces the idea that a deposit need be imperceptible, to become the subject of private ownership, even though the title to the bed of the stream on which it is formed is in the state.

The reason of the rule giving accretions to a riparian proprietor as before stated, is that he is entitled to reap from his position the benefits that may spring therefrom, as that position exposes him to corresponding losses. Applying the reason of the rule to the case of a proprietor whose water front is dedicated to a public use, e. g., should it constitute a public street, the question might arise as to whom future accretions should belong. We cite from Gravier v. New Orleans, referred to in the opinion of the court in Saulet v. Shepherd, 4 Wall. 508: “If Gravier had continued proprietor of the whole tract on which the faubourg has been established, there would have been no difficulty in determining his title to the alluvion. But Gravier has divested himself of all title to that part of his tract on which the faubourg is situated, by the establishment of the faubourg, and by selling the lots fronting and adjoining the highway. It is therefore important to inquire what was the situation of the batture or alluvion in question at the time, when the faubourg was established, or at least when the front lots were sold; for if no alluvion existed at the time when Gravier ceased to be the owner of the land adjoining the high road, then it is the opinion of the court that an alluvion subsequently formed would not become the property of Gravier. The reason of this opinion is, that if Gravier could be considered as the proprietor of the road after selling the adjoining land, or of the levee lying between this road and a public river, he would nevertheless not possess that kind of property which gives the right of alluvion, for the destruction of this property by the encroachments of the river, would be a public and not a private loss, since it could not be appropriated to the private use of any individual, and the said road and levee would have become necessarily liable to be kept in repair at the public expense." In consonance with this is the dissenting opinion of Martin, J., in Municipality v. Cotton Press, 18 La. 261, and such too seems the leaning of New Orleans v. United States, 10 Pet. 717. In Barney v. Keokuk, 94 U. S. 339, it is declared that if a city widen such a street, the land thus reclaimed will at all events be subject in favor of the city to the same easement that was the original street, even if a point which

is not decided, the legal title to such accretions should vest in the private proprietor. But see Banks v. Ogden, 2 Wall. 68. The general rules laid down for alluvion seem to govern as well if its formation was due to an artificial as if to a natural cause: Lovingston v. St. Clair, 64 Ill. 56; Halsey v. McCormick, 18 N. Y. 149; Godfrey v. City of Alton, 12 Ill. 37. In Lockwood v. N. Y. & H. R. R. Co., 37 Conn. 387, lands reclaimed from the waters of a harbor were treated in the same light as accretions from natural causes.

The question of the division of alluvion among water-front proprietors is one that has been much discussed. The note to Emerson v. Taylor, 23 Am. Dec. 536, treats of this mode of division in the case of flats upon the scashore. See also Deerfield v. Arms, 28 Id. 276, and note. In the case of a river above the ebb and flow of the tide, the rule generally recognized that the owner fronting on the river owns al filum aquæ, furnishes an easy guide for the division. That is, that riparian proprietors of lots are entitled to accretions which may be included by extending the original river frontage of the respective lots as nearly as practicable at right angles with the course of the river to the thread of the stream. It is obvious, since such a riparian owner already owns to the thread of the stream, that this extension of his water front into the stream but marks the extent of ownership as it stood before the accretions were formed. The accretions will but have the effect of changing the position of the thread of the stream: Miller v. Hepburn, 8 Bush, 326; Clark v. Campan, 19 Mich. 329; Knight v. Wilder, 2 Cush. 202; Bay City Gas Light Co. v. Industrial Works, 28 Mich. 182. In Batchelder v. Keniston, 51 N. H. 496, the rule of apportionment established was to ascertain the length of the shore line before any alluvion had been deposited, and then that of the new shore line, and to divide this amongst the riparian proprietors in proportion to the length owned by them on the first line. One common principle which pervades all modes of division is that no regard is paid to the direction of the side lines between contiguous proprietors-the reference is entirely to the shore line.

RELICTION.-Reliction differs from alluvion in this, that the term is applied to land made by the withdrawal of the waters by which it was previously covered. Title to land thus made will vest in the adjacent proprietor, if the withdrawal of the waters was 66 slow, gradual, and imperceptible:" Warren v. Chambers, 25 Ark. 120; S. C., 4 Am. Rep. 23; Murray v. Sermon, 1 Hawks, 56; Banks v. Ogden, 2 Wall. 57. Cases of land thus formed will be more frequent upon lakes and ponds and upon the sea-shore than upon the banks of rivers. Considering such accretions as being incidents to the adjoining estates, has therefore a tendency to deprive the government of the title it previously had to the beds of the ponds, lakes, etc. Whether this reason has operated in influencing the courts or not, it would seem that they require that the recession of the waters should be something more gradual than is afforded by a recession that is merely imperceptible to the eye. In Boorman v. Sunnuchs, 42 Wisc. 235, the case was, that in 1840 plaintiff ob tained patents from the United States for certain lots abutting on a pond of an average depth of four or five feet and of a surface area of about one hundred and sixty acres. The water gradually receded or dried up in the pond, so that in the year 1874 a strip of a few rods wide was left uncovered, below the original margin of the pond; and the depth of the water in the pond was reduced to about one foot. Within the next year this foot of water disappeared, leav. ing the bed of the pond dry. It is evident that this recession of the water must have been altogether imperceptible in any one moment of time to the Yet the court thought that the disappearance of the waters was too

eye

Budden to have entitled the plaintiff to the land left dry. In case a river suddenly abandons its bed, the title to the soil thus left dry will remain unchanged: Lynch v. Allen, 4 Dev. & B. 62; S. C., 32 Am. Dec. 671; Woodbury v. Short, 17 Vt. 387.

ISLANDS.-The cases that treat of islands which form in the beds of streams are very few. But if the doctrine is admitted that a riparian proprietor owns to the thread of the stream, an understanding of the principles that must govern such cases is easily arrived at. These principles in brief are, that an island formed to the one side of the thread of the stream is the property of the riparian proprietor on that shore to which it is nearest, because it is but an accretion to the soil that he already owns. If it is formed in such a position that the thread of the stream runs through it, then all to one side of that line will belong to the proprietor on the nearest shore, while that to the other side of the line will belong to the proprietors on the other shore: Ingraham v. Wilkinson, 4 Pick. 268; S. C., 16 Am. Dec. 342; Hopkins Academy v. Dickinson, 9 Cush. 548, discussed in the note to the former case; Middleton v. Pritchard, 3 Scam. 510. Islands thus formed will change the position of the thread of the stream again, as each side of the island will form in its turn a shore line, which will throw the thread of the stream midway between itself and the old shore which it faces. There would then be two rivers, and islands that might arise in either, which would have to be divided between the proprietors of the island first formed and the proprietors on the original shore line, according to analogous principles. Thus, if the island is altogether on the one side of the thread of the stream between the first island and the main shore, it will belong to the owner on the main shore or on the island, according as it is the nearer to the one or the other, etc.: Hopkins Academy v. Dickinson, supra. If an island rise from the bed of a stream, whereof the title is in the state, analogous principles would refer the island to the state.

STEPHENSON v. PRIMROSE.

[8 PORTER, 155.]

NO PRECISE FORM IS REQUIRED IN GIVING NOTICE TO AN INDORSER; a notice will be sufficient, whether verbal or written, if from it it appear that the maker has not met his engagement, and that the indorser is looked to for payment.

A RESIDENT INDORSER IS ENTITLED TO PERSONAL NOTICE of the dishonor of the note; if he is absent, however, from his place of business during business hours, a notice left there will bind him; but before this way of giving notice can be justified, it must be made to appear that the indorser was sought at his place of business during business hours, and that he was not found.

AN INDORSER WHO HAS TAKEN AN ASSIGNMENT from the maker of the note of all his property, in order to secure himself against the possible payment thereof, is not exempt from liability because he has not received notice; nor will he be exempt if he has taken collateral security sufficient to indemnify himself against the consequences of his indorsement; but if he has taken collateral security, but not of sufficient amount, then he is enti tled to notice.

A PLACE OF BUSINESS is a place actually occupied, either continually or at regular periods, by a person or his clerks, in the pursuit of a lawful em. ployment which occupies his time, attention, and labor. If business is transacted at a place occasionally, but not at stated periods, it can not be termed a place of business.

ASSUMPSIT. The case appears from the opinion.

Campbell, for the plaintiff in error.

COLLIER, C. J. The points made at the argument arise out of the bill of exceptions and present these questions: 1. Is the omission to give notice to an indorser of the non-payment of a promissory note, excused by proof, that the holder, within the proper time after its dishonor, left a written or verbal notice at the indorser's counting-room or place of doing business, where all the parties reside in the same city? 2. If an indorser has secured himself by a mortgage or lien on the property of the maker, does he thereby waive his right to notice of a demand and refusal? 3. Can a room to which a man is accustomed to resort, but in which it is not shown, that he carries on any regular trade or employment, be considered his place of business— and if the holder of paper call at a room thus resorted to for the purpose of giving notice to its occupant of the dishonor of a note indorsed by him, at a time when he is absent, is the holder excused from giving notice; especially where it appears that the indorser has a dwelling-house and livery stables within the same city, the latter of which he personally superintends?

1. Every indorsement of a promissory note constitutes in itself a new and substantive contract. According to the law merchant, the indorser stipulates with the indorsee, and each subsequent holder (in the ordinary course of business), that if a demand of payment is made of the maker at its maturity, and due notice of the non-payment be given him, then he himself will pay the note. The undertaking of the indorser is conditional: contemplating some act to be done on the part of the holder; and before his liability becomes absolute, it must be shown, either that a performance of the condition was prevented by some act of the party entitled to claim its benefit, or that he has waived the necessity of performing it. No precise form is required in giving notice to an indorser. Its object is to inform him of the failure of the maker to meet his engagement with promptness, and to advise him that he will be looked to for payment in order that he may take measures for his indemnity; and any means of communicating this information, whether verbally or in writing, will be sufficient: Shed v. Brett, 1 Pick. 401 [11 Am.

Dec. 209]; Mills v. The Bank of the United States, 11 Wheat. 431; Reedy v. Seixas, 2 Johns. Cas. 337; Smith v. Whiting, 12 Mass. 6[7 Am. Dec. 25]; Cowles v. Harts, 3 Conn. 516; Solarte v. Palmer, 7 Bing. 629.1

In the case before us, the note was made payable at the bank of Mobile. The parties both resided in that city, so that according to a well-established rule, it was necessary, in order to fix the indorser's liability, that he should have been personally informed of the dishonor of the note, either verbally or in writing; or a notice should have been left at his dwelling-house, or place of business. Either mode would have been sufficient, but one or the other was essential, unless the plaintiff, by his own act, prevented it: Williams v. The Bank of United States, 2 Pet. 96; Ireland v. Kip, 10 Johns. 490; S. C., 11 Id. 231; Bank of Columbia v. Lawrence, 1 Pet. 578; Smedes v. Utica Bank, 20 Johns. 372; 3 Kent's Com. and cases there cited. It is not pretended that a personal notice was given to the plaintiff, but only that a room in the city (understood by the holder to be his place of business), was twice visited for the purpose of giving him notice of the dishonor of the note—that he was not in the room at either of these visits, nor was any one else, but a servant, who, to the witness' inquiries, returned an equivocal answer. The holder made no farther effort to find the plaintiff, but deposited a written notice in the post-office for him. Conceding that the place at which the plaintiff was sought was his place of business, and still we think the effort to give notice was insufficient. It is indispensable to the holder's right of recovery, to prove that the indorser has been duly advised of the default of the maker; or to show a sufficient excuse for the failure to give him notice. Now to make the excuse available, it should have been shown, not only that the witness called at the plaintiff's place of business, but it should appear further, that the visit was made at a seasonable time-viz., within the hours of business. Then, it may be supposed, that he should be there in person, or if absent, that his clerks, or others, were there, to receive and communicate a notice to him; but when the hour for relaxation, or rather the period for the suspension of business shall have arrived, the man of business should be sought rather at his dwelling-house, than elsewhere.

In Shed v. Brett and Trustees, 1 Pick. 413 [11 Am. Dec. 209], a notary public testified that when the note became due, he went with it, at the request of the indorsee, to the place of business of the promisors, and found it closed, no person being there, of

1. 7 Bing. 530.