notice, it must be given before the close of business hours on the day following (a);

2. If given at his residence, it must be given before the usual hours of rest on the day following (b);

3. If sent by mail, it must be deposited in the post-office in time to reach him in usual course on the day following (c).

(a) Adams v. Wright, 14 Wis. 408; Cayuga County Bank v. Hunt, 2 Hill, 236; Marks v. Boone, 24 Fla. 177; Bell v. Hagerstown Bank, 7 Gill, 216; Daniel on Neg. Insts., section 1038. The notice must follow upon the first demand. Rosson v. Carroll, 90 Tenn. 90.

(b) Phelps v. Stocking, 21 Neb. 444; Darbishire v. Parker, 6 East. 8. While service at the place of business must be during business hours, service at the residence is not so regulated. It will be sufficient if made during any of the hours when members of household are attending to their ordinary affairs. Adams v. Wright, 14 Wis. 408. If the service is properly made at the place of business or residence, it is immaterial that the party to be notified did not in fact receive the notice. Adams v. Wright, 14 Wis. 408.

(c) See note to next section.

§ 175. Where parties reside in different places.— Where the person giving and the person to receive notice reside in different places, the notice must be given within the following times:

1. If sent by mail, it must be deposited in the post-office in time to go by mail the day following the day of dishonor, or if there be no mail at a convenient hour on that day, by the next mail thereafter (a).

2. If given otherwise than through the post-office, then within the time that notice would have been received in due course of mail, if it had been deposited in the post-office within the time specified in the last subdivision (b).

(a) Sanderson v. Sanderson, 20 Fla. 292; Rosson v. Carroll, 90 Tenn. 90; Stephenson v. Dickson, 24. Pa. St. 148; Whitwell v.

Johnson, 17 Mass. 449. In Smith v. Poillon, 87 N. Y. 590, 597, Earl, J., said: "From a careful examination of all these authorities and many others, it is clear that the law is not precisely settled. It appears that at first it was supposed to be necessary that notice of dishonor should be given by the next post after dishonor, on the same day, if there was one. That rule was found inconveniently stringent, and then it was held that when the parties lived in different places, between which there was a mail, the notice could be posted the next day after the dishonor or notice of dishonor. Some of the authorities hold that the party required to give the notice may have the whole of the next day. Some of them hold that when there are several mails on the next day, it is sufficient to send the notice by any post of that day. Other authorities lay down the rule, in general terms, that the notice must be posted by the first practical and convenient mail of the next day; and that rule seems to be supported by the most authority in this State. What is a practical and convenient mail depends upon circumstances. It may be controlled by the usages of business and the customs of the people at the place of mailing, and the condition, situation and business engagements of the person required to give the notice. The rule should have a reasonable application in every case, and whether sufficient diligence has been used to mail the notice, the facts being undisputed, is a question of law." But see Burgess v. Vreeland, 4 Zab. (N. J.) 71; Winans v. Davis, 3 Harr. (N. J.) 276. Where it is proper to send the notice by the mail, and it has not arrived at as early a date as in the regular course of the mail it might have come if started at the proper time, the onus is upon the plaintiff to prove that it was put in the mail at the proper time. Friend v. Wilkinson, 9 Gratt. 31.

(b) Bank of Columbia v. Lawrence, 1 Peters, 578; Jarvis v. St. Croix Mfg. Co., 23 Me. 287.

§ 176. When sender deemed to have given due notice.— Where notice of dishonor is duly addressed and deposited in the post-office, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails (a).

(a) Windham Bank v. Norton, 22 Conn. 213; Pier v. Heinrichsoffen, 67 Mo. 163; Bell v. Hagerstown Bank, 7 Gill, 216; Sasscer

v. Farmers' Bank, 4 Md. 409; Cook v. Foraker, 193 Pa. St. 461. In Shed v. Brett, 1 Pick. 401, 410, it was said: The mail being established by standing laws of the Government for the purpose principally of facilitating the transmission of mercantile correspondence, it being by far the most usual conveyance of letters and generally the most sure as to time, and safe in every other respect, all men who deal in mercantile paper are presumed to assent, and even expect, that such information as they may want will be communicated in this way. And thus the post-office becomes their agent; and if it happened to fail from any unexpected cause, he who made the right use of it by placing his letter there properly directed has done all his duty, and the consequences must fall upon him who has to receive."

§ 177. Deposit in post-office; what constitutes.- Notice is deemed to have been deposited in the post-office when deposited in any branch post-office or in any letter-box under the control of the post-office department (a).

(a) See Nat. Bank v. Shaw, 79 Me. 376; Pearce v. Langfit, 101 Pa. St. 507; Johnson v. Brown, 154 Mass. 105; Skilbeck v. Garbett, 7 Q. B. 846. In some cases it has been held that delivery to a letter carrier was sufficient. Pearce v. Langfit, 101 Pa. St. 507; Shoemaker v. Mechanics' Bank, 59 Pa. St. 79. But it was not deemed wise to adopt this rule in the statute.

§ 178. Notice to subsequent* party; time of. Where a party receives notice of dishonor, he has, after the receipt of such notice, the same time for giving notice to antecedent parties that the holder has after the dishonor (a).

(a) Howland v. Adrian, 29 N. J. Law, 41; Howard v. Ives, 1 Hill, 263; Jameson v. Swinton, 2 Taunt. 224; Shelburne Falls National Bank v. Townsley, 102 Mass. 177; Seaton v. Scovill, 18 Kans. 435; Haly v. Brown, 5 Pa. St. 178; Etting v. Schuylkill Bank, 2 Pa. St. 355; Struthers v. Blake, 30 Pa. St. 139; Bray v. Hadwen, 5 Maule & Sel. 68; Linn v. Horton, 17 Wis. 150. If the holder of an indorsed bill or note chooses to rely upon the antecedent."

* Error in egrossing. The word should be

66

responsibility of his immediate indorser, there is no necessity for his giving notice to any previous party; and if such notice be properly given in time, by the other parties, it will enure to the benefit of the holder and he may recover thereon against any of them. Thus, if the holder notifies the sixth indorser, and he the fifth, and so on to the first, the latter will be liable to all the parties. And it is no objection to such notice that it is not in fact received so soon as the first or any prior indorser, as if it had been transmitted directly by the holder or notary, provided it has been seasonably sent by each indorser as he received it. Colt v. Noble, 5 Mass. 167; Mead v. Engs, 5 Cow. 303; Howard v. Ives, 1 Hill, 263. And the same degree of diligence must be exercised on the part of the indorser in forwarding notice as is required of the holder. Ordinary diligence must be used in both cases. He is not bound to forward notice on the very day upon which he receives it, but may wait until the next. See cases above cited. Service of notice upon an antecedent party is not shown by the mere testimony of the notary that not knowing the address of the indorser he inclosed the notice of dishonor to a subsequent indorser with postage for forwarding the same to the prior indorser. Fuller Buggy Co. v. Waldron, 112 App. Div. (N. Y.) 814. The holder of a check indorsed and deposited the same in his bank for collection on July 28th. On July 29th, he was notified by the bank that the check had been dishonored, and on July 30th, he notified the payee by telegraph: - Held, that the notice was in due time under this section. Jurgens v. Wichmann, 108 N. Y. Supp. 881.

§ 179. Where notice must be sent.- Where a party has added an address to his signature, notice of dishonor must be sent to that address (a); but if he has not given such address, then the notice must be sent as follows:

1. Either to the post-office nearest to his place of residence, or to the post-office where he is accustomed to receive his letters (b); or

2. If he live in one place, and have his place of business in another, notice may be sent to either place (c); or

3. If he is sojourning in another place, notice may be sent to the place where he is so sojourning (d).

on the day the instrument became due or afterward. The only consequence of a failure to make such presentment is that the maker or acceptor, if he was ready at the time and place to make the payment, may plead the matter in bar of damages and costs. Hills v. Place, 48 N. Y. 520, 523; Parker v. Stroud, 98 N. Y. 379, 384; Cox v. National Bank, 100 U. S. 713; Wallace v. McConnell, 13 Peters, 136; Lazier v. Horan, 55 Iowa 77; Insurance Company v. Wilson, 29 W. Va. 543; Lockwood v. Crawford, 18 Conn. 361; Bond v. Storrs, 13 Conn. 416.

(d) Where, by the terms of the instrument, the holder has the option to declare the principal sum due upon default in the payment of interest he must prove presentment and notice in order to hold an indorser. Galbraith v. Shepard, 43 Wash. 698. Where a draft is drawn in another State, by one residing there, upon a person residing in New York, any legal question in reference to presentation and demand for payment is to be determined by the laws of New York. Sylvester v. Crohan, 138 N. Y. 494; Hibernia Bank v. Lacomb, 84 N. Y. 367. As to presentment of a bill drawn in New York upon a person doing business in a foreign country, see Amsinck v. Rogers, 189 N. Y. 252. The indorser is entitled to demand and notice notwithstanding he holds collateral security. Whitney v. Collins, 15 R. I. 44.

§ 131. Presentment where instrument is not payable on demand. Where the instrument is not payable on demand, presentment must be made on the day it falls due (a). Where it is payable on demand, presentment must be made within a reasonable time after its issue (b), except that in case of a bill of exchange, presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof (c).

(a) As to date of maturity, see section 145.

(b) Turner v. Iron Chief Mining Co., 74 Wis. 355; Mudds v. Harper, 1 Md. 110. This provision changed the law of New York, which prior to the statute was, that a promissory note payable on demand with interest was a continuing security, on which an indorser remained liable until an actual demand, and the holder was not chargeable with neglect for omitting to make such de