The opinion of the court was delivered by

This is a suit against an endorser, and the ■ only defence interposed by him is that the-notice of the dishonor of the note misdescribed the maker’s name, and that he was misled by such imperfection.

From the exhibits and the evidence it is shown that the name of the maker of the note in question is illegible, and it was considered so to be by the notary who protested it. If the signature had been so written as to lead the notary, in the exercise of due caution and skill, to the belief that it stood for a certain name and he had so described it, such error *398would not have vitiated his notice. A mistake of that character is not attributable to the negligence of the holder of the paper or that of his agent giving notice of its dishonor, but the endorser who passes the paper into circulation must bear the consequences of such misleading defect. But when the name of the maker is not so fashioned as to suggest- to the notary a false name, but he finds it illegible, then it plainly becomes his duty to use reasonable endeavors to ascertain who is the person thus indistinctly signified. He is, when thus placed, put upon inquiry, and must use proper diligence. Such I understand to be the legal rule. Pars, on Bills and Notes 485.

And this was the situation of the notary in the present instance. The name signed to the note was H. Jacobs. The officer, finding it illegible, sought to make a facsimile of it, and in doing so wrote it Le Cals. As I have said, he could not resort to this expedient until he had exhausted all reasonable attempts to ascertain the real name thus obscurely indicated. In the performancé of this duty the officer was utterly remiss. The address of the maker at 403 Broome street, N. Y., was subscribed to his name, and the residence of the endorser, the defendant, was in the same city. The note was payable at the National Citizens’ Bank, in Broadway, and was there presented by the notáry, but he made no inquiries of the officers of that institution with regard to the maker’s name. The only inquiry h'e made of any one was at the Park Bank, to which the note had been sent for collection. The course thus .pursued by the notary was devoid of that diligence which the rules of the law exact. The notice to the endorser was not sufficient, unless it appears in the case that he was not misled by it.

But, to the contrary of this, he testifies that he was so misled. He was called as a witness by the plaintiff, and his testimony is unequivocal to this effect. It is true that thfere are some circumstances that cast suspicion over his statements, but, as the case stood, there was nothing tangible on which the jury had a right to rest-the verdict rendered by them.

There should be a new trial.