It is not, nor indeed, upon the evidence, can it well be disputed, that the note in question on the day it matured was demanded of the maker, and payment refused ; and that notice of this demand and non-payment was on the day following duly given to the indorser, M. J. Higgins. But it appears that the notice was wrongly dated by a mistake of the notary, and it is contended that the effect of this mistake is to invalidate the notice, and thus discharge the indorser from liability.
It is not intimated, nor is there any evidence in the case, from which it can be presumed that the defendant was in any way misled by this error, or that the notice failed to apprise him that this particular note had been dishonored, and under such circumstances, I think, the justice very properly considered the evidence at the trial as aiding the defect in the notice, and in determining as to its sufficiency.
The cases of Wynne a. Alden (4 Den., 163), and Eansom a. Mack (2 Hill, 587), cited and relied on by the appellant, seem to me to have been overruled by the Court of Appeals in Cayuga County Bank a. Warden (1 Comst., 413), as far as they may be deemed controlling upon the question here presented. In the latter case the objection rested upona misdescription of the note, and, therefore, it was claimed that the notice of protest was not calculated to inform the defendant of the note in that suit having been dishonored.
It then appeared in evidence that although the note was misdescribed in amount, and also in other respects, yet the defendant could not have been misled thereby, as the bank held no other note indorsed by him. Chief-justice Jewett, in delivering the opinion of the court said: “ Concede that such variance or misdescription exists, it is well settled in accordance with good sense, that an immaterial variance in the notice will not vitiate it. And certainly a variance is immaterial which is not calculated to, and does not in reality, mislead a party. Here the note was properly described, was duly demanded when it became due, and the day following such demand the defendant was notified thereof, and merely because the notice bore a wrong date, and stated that the note had been on that da/y demanded, it cannot and ought not in the absence of any proof on the sub*426ject be inferred that this error in date misled the defendant to his injury.”
It seems to me, in the words of Chief-justice Jewett, “that to hold in conformity with the objection here stated, would be to sacrifice substance to the merest technical formality, and that it is quite impossible not to see, under the circumstances disclosed in this case, that the notice here given fully informed the defendant that this particular note had been dishonored.”
The remaining objections on this appeal appear to me fully disposed of by.the evidence at the trial, showing this note to have been given for property purchased with money belonging to the separate estate of the plaintiff, and that she became the holder of it for a valuable consideration before maturity.
I am of opinion that the judgment was right and should be affirmed.