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"the notice be sent off on the day after the dishonor of the bill, if there be a post at a convenient hour on that day, and if there be no post on that day, then by the next post thereafter." 80 This is in effect the same as the above provision of the Negotiable Instruments Law. The great weight of authority supports the rule that where the party to give the notice, and the party to receive it reside in different places, between which there is a mail, the notice may be sent by mail on the day succeeding the dishonor.81 And if a notice be given by the holder to an indorser by mail, addressed to the indorser at the post-office nearest his residence, and deposited in the post-office at the proper time, the indorser will be charged whether he received the notice or not.82 The letter containing the notice must be posted early enough to be sent by mail on the day succeeding the dishonor of the instrument.83 It has been held that

80. English Bills of Exchange Act, 1882, 49(12b).

81. Notice by mail where parties reside in different places, see the following cases:

United States.- Lenox v. Roberts, 2 Wheat. 373; Alexandria Bank v. Swann, 9 Pet. 33.

82. The following cases support this doctrine:

United States.- Dickins v. Beal, 10 Pet. 572, 9 L. Ed. 538; Bussard v. Levering, 6 Wheat. 102, 5 L. Ed. 215. Connecticut.- Shepard v. Hall, 1 Conn. 329.

Maine.- Loud v. Merrill, 45 Me.

Alabama.- Knott v. Venable, 42 516. Ala. 186.

Florida.

20 Fla. 304.

Maryland.- Citizens' Bank v. GrafSanderson v. Sanderson, flin, 31 Md. 507, 1 Am. Rep. 66; Sasscer v. Farmers' Bank, 4 Md. 409.

Indiana.- Brown v. Jones, 125 Ind. 375, 25 N. E. 452, 21 Am. St. Rep. 227. Kentucky.- Hickman v. Ryan, 5 Litt. 24.

Maine.- Goodman v. Norton, 17

Me. 381.

Maryland.- Bell V. Hagerstown Bank, 7 Gill, 216.

Massachusetts.- Grand Bank v. Blanchard, 23 Pick. 305; Eagle Bank v. Hathaway, 5 Metc. 212; Talbot v. Clark, 8 Pick. 51.

Nebraska.- Phelps v. Stocking, 21 Neb. 443, 32 N. W. 217.

New Hampshire.— Carter v. Burley, 9 N. H. 558.

New Jersey. Sussex Bank v. Baldwin, 17 N. J. L. 487.

New York.- Mead v. Engs, 5 Cow. 303; Robinson v. Ames, 20 Johns. 146, 11 Am. Dec. 259; Mohlman Co. v. McKane, 60 App. Div. 546, 69 N. Y. Supp. 1046.

North Carolina.- National Bank v. Bradley, 117 N. C. 526, 23 S. E. 455. Pennsylvania.- Stephenson v. Dickson, 24 Pa. St. 148, 62 Am. Dec. 369.

Massachusetts.- Shedd v. Brett, 1 Pick. 401, 11 Am. Dec. 209; Stanton v. Blossom, 14 Mass. 116, 7 Am. Dec. 198.

Mississippi.-Ellis V. Commercial Bank, 8 Miss. 294, 40 Am. Dec. 63.

New York.- Ireland v. Kip, 11 Johns. 231; Price v. McGoldrick, 2 Abb. N. C. 69; Townsend v. Auld, 8 Misc. 516, 28 N. Y. Supp. 746.

Ohio. Liggitt v. Wing, 31 Wkly. L. Bul. 85; Walker v. Stetson, 14 Ohio St. 89, 84 Am. Dec. 362.

Pennsylvania.- Woods v. Neeld, 44 Pa. St. 86; Jones v. Lewis, 8 Watts & S. 14.

83. Hickman v. Ryan, 5 Litt. (Ky.) 24; Talbot v. Clark, 8 Pick. (Mass.) 51; United States v. Barker, Fed. Cas. No. 14,520, 2 Wash. C. C. (U. S.) 464, affd. in 12 Wheat. (U. S.) 559, 6 L. Ed. 728.

Posting the notice on the day following the date of dishonor will not constitute a service within sufficient time unless the posting is early enough in the day for the mail leav

if two mails leave the same day by the same route to the place of residence of the indorser, it is sufficient to deposit the notice in the post-office in time to go by either mail of that day, inasmuch as the fractions of the day are not counted.84 But on the other hand there are a number of cases to the effect that the notice should be so posted as to go by the first convenient mail on the day following the dishonor.85 The statute does not prescribe the particular mail on the day following the day of dishonor by which the notice should be sent, and presumably the rule of the statute will permit a post

ing on that day. Lenox v. Roberts, 2 Wheat. (U. S.) 373, 4 L. Ed. 264; Bank of Alexandria v. Swann, 9 Pet. (U. S.) 33, 9 L. Ed. 40; Goodman v. Norton, 17 Me. 381; Chick v. Pillsbury, 24 Me. 458, 41 Am. Dec. 394; Carter v. Burley, 9 N. H. 558; Manchester Bank v. White, 30 N. H. 456; Denny v. Palmer, 27 N. C. 610.

the day on which the holder receives notice of the dishonor of the note;" Burgess v. Vreeland, 24 N. J. L. 71; Sussex Bank v. Baldwin, 17 N. J. L. 496; Stephenson v. Dickson, 24 Pa. St. 152, 62 Am. Dec. 369; Peabody Ins. Co. v. Wilson, 29 W. Va. 536.

Conflicting authorities. In the case of Smith v. Poillon, 87 N. Y. 590, 597, 84. Where more than one mail 41 Am. Rep. 402, Earl, J., said: leaves on the day following dishonor, "From a careful examination of all it is immaterial by which mail the notice is sent; it is only necessary that it be posted early enough to go by a mail of that day. Whitwell v. Johnson, 17 Mass. 449, 454.

In the case of Howard v. Ives, 1 Hill (N. Y.), 263, a notice was mailed in Troy directed to an indorser residing in Lansingburgh at 9 A. M. of the day following the dishonor; it was held that the notice was timely, though the mail from Troy to Lansingburgh closed at 8 A. M.

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 And in Smith v. Poillon, 87 N. Y. of the authorities hold that the party 590, 41 Am. Rep. 402, the second in- required to give the notice may have dorser of a promissory note residing the whole of the next day. Other auin Warren, Maine, received due no- thorities lay down the rule, in gentice of dishonor thereof by mail; eral terms, that the notice must be wishing to consult counsel in respect posted by the first practical and conthereto, he drove on the same day to venient mail of the next day; and the neighboring town of Thomaston; that rule seems to be supported by he there mailed notice of dishonor to the most authority in this State. the defendants residing in New York What is a practical and convenient by a mail leaving at 1:40 P. M., which mail depends upon circumstances. passed through Warren, his place of It may be controlled by the usages of residence, at 2 P. M.; there was also business and the customs of the peoa mail leaving Thomaston at 10:10 ple at the place of mailing, and the A. M., and Warren at 9:30. It was condition, situation, and business enheld that the notice was timely. See gagements of the person required to also Lawson v. Farmers' Bank, 1 Ohio give the notice. The rule should have St. 206. a reasonable application in every case,

85. Haskell v. Boardman, 8 Allen and whether sufficient diligence has (Mass.), 38, in which the court said: been used to mail the notice, the "The rule is that such notices should facts being undisputed, is a question go by the next practicable post after of law."

ing at any time so that the notice may go by any mail on such following day.

The general rule has been well stated in the following language: "When the parties reside in different places or States, the notice may be sent by the mail of the day of the default; but if not it must be deposited in the office in time for the mail of the next day, provided the mail of that day be not made up and closed at an unreasonably early hour. If, however, the mail of that day be closed before a reasonable time after early business hours, or if there be no mail sent out on that day, then it must be deposited in time for the next possible post."

986

Where the notice is transmitted otherwise than by mail, the rule is, independent of statute, that the notice will be sufficient if it reach the party entitled to receive it during the business hours of the day on which it would have reached him had it been sent by mail.87 The holder of a bill or note has a right to adopt a private conveyance, instead of the mail, for the transmission of a notice of dishonor; but in such a case it is incumbent upon the holder to show that due diligence was used.8

88

e. Notice to successive indorsers; statutory provision.- Each indorser is entitled, as we have seen, to a notice of dishonor from his indorsee; each indorser is entitled to one day for giving notice to the party next liable; but the time is to be calculated from the

89

of a bill of exchange given at the counting-house of a merchant or manufacturer between the hours of six and seven in the evening is not too late. 88. Jarvis v. St. Croix Mfg. Co., 23 Me. 287.

86. Per Bartley, J., in Lawson v. he will not on that account be disFarmers' Bank, 1 Ohio St. 206, 215. charged. And it was further held in In the case of Chick v. Pillsbury, 24 this case that notice of the dishonor Me. 458, the doctrine on this subject has been more fully examined than perhaps in any of the older cases; and the rule adopted was, that the notice, in order to charge the indorser living in another place or State, must be deposited in the post-office in time to be sent by the mail of the day succeeding the day of the dishonor, providing the mail of that day be not closed at an unreasonably early hour, or before early and convenient business hours.

87. Notice sent by private hand. Bancroft V. Hall, Holt's Nisi Prius Rep. (Eng.) 476, where it was held that it is sufficient, provided there be no essential delay, if the holder send notice by a private hand; and although such notice should thereby reach the drawer later in the day than if it had been sent by mail,

89. See ante, § 108; Butler v. Duval, 4 Yerg. (Tenn.) 265.

90. Notice by one indorser to party next liable, see the following cases: United States.-United States Bank v. Goddard, 5 Mason, 366.

Alabama.- Whitman V. Farmers' Bank, 8 Port. 258.

Arkansas.-Davis v. Hanly, 12 Ark.

645.

Iowa.- First Nat. Bank v. Farneman, 93 Iowa, 161, 61 N. W. 424. Kentucky. Smith v. Roach, 7 B. Mon. 17.

Louisiana.- Barker v. Whitney, 18 La. 575.

91

day on which the notice is in fact received, and is not to be enlarged because the notice was received earlier than might in strictness have been required. And it is no objection to a notice by an indorser, that it was not received so soon by an earlier indorser as it would have been if transmitted directly to him by the holder, provided it was sent with reasonable diligence by each indorser as he received it.92 The notice may properly take its regular course from one indorsee to his immediate indorser, and thus by circuitous route to the first indorser, 93 and all parties receiving the notice will be bound thereby, if due diligence is used by all of them.94

Where one of successive indorsers was not notified of the dishonor of the instrument within a reasonable time by the holder or a subsequent indorsee, his prior indorser will be discharged, and if he voluntarily pays the bill or note, such prior indorser may avail himself of the defense of want of diligence in giving the

Maine.-Allen v. Avery, 47 Me. 287; Freeman's Bank v. Perkins, 18 Me. 292; Farmer v. Rand, 16 Me. 453.

Massachusetts.- Haskell v. Boardman, 8 Allen, 38; Shelburne Falls Nat. Bank v. Townsley, 102 Mass. 177, 3 Am. Rep. 445; Fitchburg Bank v. Perley, 2 Allen, 433; True v. Collins, 3 Allen, 438.

Missouri.- Renshaw v. Triplett, 23 Mo. 213.

New Hampshire.-Manchester Bank v. Fellows, 28 N. H. 302; Carter v. Burley, 9 N. H. 558.

New Jersey. State Bank v. Ayers, 7 N. J. L. 131.

New York.-West River Bank v. Taylor, 7 Bosw. 466, affd. in 34 N. Y. 128; Ogden v. Dobbin, 2 Hall, 112; Higgins v. Barrowcliffe, 14 Jones & S. 540; United States Bank v. Davis, 2 Hill, 451; Wynen v. Shappert, 6 Daly, 558; Metropolitan Bank v. Engel, 66 App. Div. 273, 72 N. Y. Supp. 691.

North Carolina.- National Bank v. Bradley, 117 N. C. 526, 23 S. E. 455. Ohio.- Lawson v. Farmers' Bank, 1 Ohio St. 206.

Pennsylvania.- Stephenson v. Dickson, 24 Pa. St. 148, 62 Am. Dec. 369; Struthers v. Blake, 30 Pa. St. 142; Etting v. Schuylkill Bank, 2 Pa. St. 355, 44 Am. Dec. 205.

Rhode Island.- Mitchell v. Cross, 2 R. I. 437.

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92. Linn v. Horton, 17 Wis. 151.

93. Indorsee may take regular course of mails to notify his immediate indorser, see West River Bank v. Taylor, 7 Bosw. (N. Y.) 466, affd. in 34 N. Y. 128. When a note is presented for payment and payment is refused, the holder acts with reasonable diligence, if he gives notice by the regular course of mail to the indorser from whom he received it that he may transmit notice to his immediate indorsers, who may take the same course as to the prior indorsers; and if the indorsers in due season adopt the regular course of mail for transmitting notice from one to the other, and by that reason the route to the first indorser is made circuituous, it is not want of diligence on their part, and he cannot set up the manner of giving the notice, and the delay occasioned by it as a defense. Ogden v. Dobbin, 2 Hall (N. Y.), 112.

94. Linn v. Horton, 17 Wis. 151; Whitman v. Farmers' Bank, 8 Port. (Ala.) 258; Carter v. Burley, 9 N. H. 558; Metropolitan Bank v. Engel, 66 App. Div. (N. Y.) 273, 72 N. Y. Supp. 691.

notice, 95

There is no distinction made where a bill or note is indorsed to a bank for collection; the bank is regarded as a holder and has a day to give its principal notice, who in turn has another day to give his indorser notice.98

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The Negotiable Instruments Law provides that: 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." 97 This is substantially the same as the rule contained in the English Bills of Exchange Act, and is, as we have already seen, declaratory of the general rule.

§ 114. Service of notice by mail.

a. In general.-We have already considered the propriety of serving notice of dishonor by mail.99 The general rule that where the person to be notified and the person required to give the notice reside in the same place, the notice must be served personally or by leaving it at the place of business or residence of the person to be notified has been abrogated by statute or by the Negotiable Instruments Law in nearly all the States; and in some other States the rule has been modified or limited by force of recent decisions. The notice, if served by mail, should be directed to the post-office where

95. Brown v. Ferguson, 4 Leigh though the paper is indorsed from (Va.), 37, 24 Am. Dec. 707.

one to another agent for collection merely. Each of such indorsers is to be regarded as a party for all the purposes of charging prior parties. Farmers' Bank v. Vail, 21 N. Y. 485.

96. Notice where instrument was indorsed for collection. A banker presenting a bill for his customer has the same time to give notice to his customer as if he were the holder for his own benefit, and the An agent to whom a negotiable note customer has the same time, as is intrusted for collection, whether if such had been the case, to trans- by indorsement or mere delivery, is mit notice to former parties. Mc- treated in the matter of giving noNeil v. Wyatt, 3 Humph. (Tenn.) tice of nonpayment as an indorsee 125. See also Myers v. Courtney, 11 of the note. He is entitled to the Phila. (Pa.) 343; West River Bank usual time to notify his principal of v. Taylor, 7 Bosw. (N. Y.) 466, affd. nonpayment, and the principal to the in 34 N. Y. 128; Warren v. Gilman, usual time thereafter to notify ante17 Me. 360; Fish v. Jackman, 19 Me. cedent indorsers. But if the agent 467, 36 Am. Dec. 769. A bank to has failed to give notice to his princiwhich a note was indorsed for collec- pal in due time, the latter is cut off, tion is to be regarded as a party to though he may thereafter use due dilithe paper for all the purposes of re- gence in communicating notice to anceiving and giving notice to charge tecedent parties. Rosson v. Carroll, the prior parties. When an indorser 90 Tenn. 90, 16 S. W. 66. intends charging previous indorsers by consecutive notices, and they reside in different places, due diligence will have been used when notice is sent the day following that on which it is received. The rule is the same

97. Neg. Inst. L. (N. Y.), § 178. For same section in statutes of other States see Appendix.

98. English Bills of Exchange Act, 1882, § 49(14).

99. See ante, § 112, (b), (4).

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