.

It is certain that notice need not be given on the very day of dishonor, though the holder has the option to do so if he pleases;' and in point of fact it is usual for the holder or notary to prepare and send notice forthwith after dishonor. It is difficult to express a precise rule which will apply to all cases, and to fix definitely within what time after the day of dishonor the notice must be sent, and it is to be determined by reference to the residence of the parties, the means and frequency of communication, and the time of departure of the mails or other conveyance by which notice may be transmitted.

§ 21. But where they reside in the same place the settled rule is that the holder has until the expiration of the following day to give notice; and he is not confined within the business hours of the day to give the notice at the party's dwelling. He may give it there at any time before the hours of rest; but if he gives it at the place of business it must be done during the hours of business.3

§ 22. When the parties reside in different places, and there is mail communication between them, the rule laid down by the U. S. Supreme Court is, that the notice should be deposited in the post in time to be sent by the mail of the day after dishonor, provided such mail is not closed before early and convenient business hours of that day; in which case it must be sent by the next mail thereafter.*

In other words, the notice must be sent by the first mail which leaves after the day of dishonor is past, and does not close before early and convenient business hours of the day succeeding the day of dishonor; the design of the law being to afford the holder an opportunity to mail the notice on the day succeeding that of dishonor.

This rule is sanctioned by numerous and eminent authorities, and

'Hine vs. Allely, 4; B. & Ad., 624 (24 E. C. L. R.); Hume vs. Peploe, 8 East, 169; Ex parte Moline, 19 Vesey, 216; Coleman vs. Carpenter, 9 Barr, 178; Price vs. Young, 1 McCord, 339; Story on Bills, 2290; Chitty on Bills, chap. 10, p. 510; Byles on Eills, (Sharswood's ed.,) 428; Bank of Alexandria vs. Swann, 9 Peters, 33; Lenox vs. Roberts, 2 Wheat., 373.

2Jameson vs. Swinton, 2 Taunt., 224; Bayley on Bills, 176.

Adams vs. Wright, 14 Wisconsin, 408; Cayuga Co. Bank es. Hunt, 2 Hill (N. Y.,) 635; Crosse 18. Smith, 1 Maule & S., 545; Garnett vs. Woodcock, 6 Maule & S., 44; Parker vs. Gordon, 7 East, 385; Allen vs. Edmundson, 2 Carr. & K., 547; Story on Bills, 2290.

'Fullerton rs. Bank U. S., 1 Peters, 605; Bank of Alexandria vs. Swann, 9 Peters, 33; Lenox vs. Roberts, 2 Whcat., 373; U. S. vs. Barker, 12 Wheat., 559, 4 Wash., 465. These cases do not state the rule as broadly as laid down in the text, but they are not inconsistent with it as explained in the case of Lawsen vs. Farmer's Bank, 1 Ohio State, 206-a most learned and instructive case on the subject of notice.

it seems to us adopts the only principle which may be safely followed in all cases.1

Chancellor Kent has expressed the opinion that it would be sufficient to mail the notice at any time on the day after dishonor, but this is a greater relaxation than the leading cases recognize, and is going further than necessary to extend a liberal time to the holder.3 In many cases it is said that notice must be sent by the mail of the next day after dishonor; but most of these cases, as observed by Professor Parsons, were cases which held that notice so sent is sufficient, which is undoubtedly true. "By the next practicable mail,” after the day of dishonor, is the language adopted by a number of authorities; but they are not altogether concurrent in the definition of the phrase, and the rule of the text seems less susceptible than any other of misinterpretation, or of working injustice to any of the parties.

So that the notice goes by some mail of the day after dishonor, it is not material by which mail of that day, and that a mail left earlier than that by which notice was conveyed, makes no difference. Certainly, it must go by the mail of the next day (if it leave not too early as we have said); or if there be no mail next day, it must go by the next mail thereafter.7

§ 23. What hour of the next day after dishonor may be considered as reasonably early and convenient within the meaning of this rule must depend upon the habits of the business community in each place; and no precise hour can be arbitrarily named. If the mail closes before early business hours of the day after dishonor, whether

'Farmer's Bank vs. Duvall, 7 Gill & J., 78; Lawsen vs. Farmer's Bank, 1 Ohio State, 206; Carter vs. Burley, 9 N. H., 558; Sussex Bank 18. Baldwin, 2 Harrison, 487; Wemple is. Dangerfield, 2 Smedes & M., 445; Downs us. Planters Bank, 1 Smede & M., 261; Mitchell vs. Cross, 2 R. I., 437; Burgess vs. Vreeland, 4 N. J., 71; Howard, vs. Ives, 1 Hill, (N. Y.,) 263; Hailford Bank 18. Stedman, 3 Conn., 489; Chick vs. Pil'sbury, 24 Maine, 458; Eagle Bank vs. Chapin, 3 Pick, 180; Manchester Bank vs. Fellows, 8 Foster, 302; 1 Parsons, N. & B., 511; Redfie'd & Bigelow's Leading Cases 393; 1 American Lead. Cases, 390; Story on Bills, 2288; Darlishrie vs. Parker, 6 East, 3; Haynes vs. Birks, 3 Bos. & Pull., 599.

23 Kent Com., 106, note e.

41 Parsons N. & B., 510, 511.

31 Parsons N. & B., 508-9.

Haskell ts. Boardman, 8 Allen, 40, in which case Bigelow C. J., said: "The rule is that notice should go by the next practicable post after the holder received notice of dishonor of the note."

'Whitewell vs. Johnson, 17 Mass., 449; Lawson vs. Farmer's Bank, 1 Ohio State, 206, Howard vs. Ives, 1 Hill, N. Y., 263; Housatonic Bank vs. Laflin, 5 Cush., 546; Goodman vs. Norton, 17 Maine, 381. "Knott vs. Venable, 42 Ala., 186.

6

it be during the night before,' or at three, four, five or six o'clock A. M., thereof, the notice need not, under the rule, be sent thereby. Seven o'clock seems debatable, at least the hour is not clearly within early business hours, unless at some particular localities; and sun-rise is certainly too soon.7

Of course three P. M. would be too late; and it has been held that where the mail closes at half past ten A. M., notice should have been sent by it; so where it closed at ten A. M.,10 and likewise where it closed at ten minutes past nine A. M." But in another locality half past nine A. M., was thought unreasonably early; while in another still it has been held that proof that the notice was deposited in the post at rine A. M., was insufficient.13

16

12

§ 24. Christmas day, Sunday," the Fourth of July or any day of public thanksgiving, or of religious festival," (upon which a man is forbidden by his religion to transact secular affairs) is counted out of the computation of time within which notice must be given. But notice is not invalid because given on the Fourth of July or other holiday; and although notice need not be forwarded until the day after dishonor or of its reception, still it is not irregular, or improper to do so if the party chooses, the time being allowed for his con

'See Ante2; Ceill vs. Jeremy, Moody & M., 61. Wemple vs. Dangerfield, 2 Smedes & M., 445. *West vs. Brown, 6 Ohio State,542.

2Mitchell vs. Cross, 2 R. I.

5Chick vs. Pillsbury, 24 Maine, 458; Davis vs. Hanly, 7 Eng., (Ark.,) 645.

"In Stephenson vs. Dickson, 24 Penn. St., 7 o'clock was held not an unreasonably early hour; but in Commercial Bank vs. King, 3 Rob., (La.,) it was held certainly sufficient to show that notice was deposited on the post at seven o'clock.

Deminds vs. Kirkman, 1 Smedes & M., 644.

Seventh Ward Bank vs. Hanrick, 2 Story, 416.

U. S. 18. Barker, 4 Wash. C. C., 464; 12 Wheat., 559.

10 Haskell rs. Boardman, 8 Allen, 38.

"Lawson vs. Farmers' Bank, 1 Ohio State, 206.

12 Burgess vs. Vreeland, 4 New Jersey, 71; so in England half past nine was held too early; Hawkes vs. Salter, 4 Bing., 715; (13 E. C. L. R.;) Byles on Bills, 426.

13 Downs vs. Planters Bank, 1 Smedes & M., 261.

"Byles on Bills, (Sharswood's ed.,) 429; Chitty on Bills, (13th Am. ed.,) 551, 552; 1 Pars., N. & B., 515.

15Cuyler vs. Stevens, 4 Wend., 566.

16 Byles on Bills, (Sharswood's ed.,) 429.

"Linds vs. Unsworth, 2 Camp., 602; Martin vs. Ingersoll, 8 Pick., 1.

18 Deblieux vs. Bullard, 1 Rob., (La.,) 66; in this case it was said it might be given on Sunday.

venience. If notice is received on Sunday it need not be forwarded until the Tuesday following as he is not bound to open the letter containing it, or to recognize it until Monday; and if received on Saturday it need not be forwarded until Monday.3

EACH HOLDER HAS A DAY.

25. The party receiving the notice may desire to communicate it to parties antecedent to him, and others before him likewise to transmit it to those antecedent to them. In such cases, the general rule, also, is that each successive party who receives notice of dishonor is entitled to a full day to transmit it to any antecedent party who is chargeable over to him upon payment of the bill or note.* So that, if a party receives notice on one day he is not bound to forward it to a prior indorser until the next day, and not then if the mail leaves before early business hours.

Upon receiving notice of dishonor the indorser should-if there be prior parties whom he wishes to hold liable—immediately notify, not only the one immediately antecedent to him, but all of them; for otherwise by the negligence of his previous indorser, or of some one of the successive indorsers, he may lose recourse against some or all of them but the one notified by him.

§ 26. The over-diligence of one party to a bill or note in giving notice can not supply the lack of diligence in another; and though the drawer or indorser sought to be charged, received, the notice as early as he would have been entitled to it had it passed in due course through the intermediate parties; yet the holder in order to bind him must show due diligence in each and every one of such intermedi

1Bussard vs. Levering, 6 Wheaton, 102; Lindenberger vs. Beall, 6 Wheaton, 104; Curry 3. Bank of Mobile, 8 Porter, (Ala.,) 360; McClane vs. Fitch, 4 B. Monroe, 599; Coleman ts. Carpenter, 9 Penn. State, 178; Haslett vs. Ehrick, 1 Nott & McC., 1.6; Corp vs. M'Comb, 1 Johns. Cas., 328; Smith vs. Little, 10 N. H., 526; Lawson vs. Farmers' Bank, 1 Ohio State, 206.

"Bayley on Bills, 172; Bray vs. Hadwen, 5 Maule, 68; 1 Parsons, N. & B., 515; Wright us. Shawcross, 2 Barn. & Ald., 501, note; Haynes vs. Birks, 3 B. & P., 599; Chitty on Bills, (13 Am. ed.,) 551.

"Howard vs. Ives, 1 Hil', 263; Friend vs. Wilkinson, 9 Grat., 31.

Jameson us. Swinton, 2 Taunt, 224; Geill vs. Jeremy, 1 Mood. & Malk., 61; Rowe, ts. Tipper, 13 C. B., 249; Lawson vs. Farmers' Bank, 1 Ohio State, 206; See 1 Pars., N. & B., 513, and cases cited; Story on Bills, 291; Byles on Bills, (Sharswood's ed.,) 430; Smith vs. Mercantile Law, 149; Simpson vs. Turney, 5 Humph., 419.

ate parties. "If," said Tucker, P., in Brown vs. Fergusons, 4 Leigh., 37, "there be a defect in any link of the chain of notices it is fatal to the holders demand. We can not eke out the under-diligence of one party by the over-diligence of another **; for as the recourse of any immediate indorser against those who lie behind him arises from his own liability to pay the bill to him to whom he passed it, the laches which takes away his liability takes away theirs also." Nor can any party by waiving his own discharge and paying the the bill or note, waive the discharge of antecedent parties.2

§ 27. In the case of a foreign bill protested in one of the United States, and the party entitled to notice resides in some other nationality, it is sufficient to send notice by the first regular ship; and it is no objection that if sent by a chance ship it would reach him sooner.3 It should be sent by the ship going to the port at which the party resides, or to some neighboring or convenient port according to the usual course of transportation of letters of business, if a reasonable time before its departure is left for writing and forwarding the notice.*

If the party delay sending notice until after a regular ship to the place where notice is addressed has departed sending it by the next ship will be too late unless the delay be excused by circumstances.5

'Brown vs. Fergusons, 4 Leigh, 37; Simpson vs. Turney, 5 Humph., 419; Smith 18. Roach, 7 B. Monroe, 17; Whitman vs. Farmers' Bank, 8 Porter, (Ala.,) 258; Etting vs. Schuylkill Bank, 2 Barr., 355; Fitchburg Bank vs. Perley, 2 Allen; 433; American Life Ins. Co. vs. Emerson, 4 Smedes & M., 177; Carter vs. Burley, 9 N. H., 558; Manchester Bank vs. Fellows, 8 Foster, 302; Kennedy vs. Geddes, 8 Porter, (Ala.,) 263; Rowe vs. Tipper, 13 C. B., 249, (76 E. C. L. R.;) 1 Pars., N. & B., 514; Story on Bills, 2 294.

"Turner vs. Leach, 4 B. & Ald., 451, (6 E. C. L. R.)

Muilman vs. D'Equino, 2 H. Black, 565; Darbishire vs. Parker, 6 East., 3. In Stainback vs. Bank of Virginia, 11 Grat., 260; a bill drawn by a house in Petersburg, Va., on a house in London was protested for non-acceptance on 5th April, 1843. The next Cunard steamer sailed from Liverpool for the United States on the 19th and notice of dishonor was sent by it. At that time the Cunard line carried the mail between the two countries under a contract with the British Government, and it was the usual mode of transmitting letters. There were, however, regular lines of sailing packets between London and Liverpool and the United States, for which letter bags were made up at the London P. O., and such packets sailed from London, or Liverpool on the 7th, 10th and 17th of April, 1843. But it was probable that the steamer of the 19th would arrive before any of them. The notice was held duly transmitted, Samuels J. saying that any other course would have sacrificed the object of the law. Byles on Bills, (Sharswood's ed.,) 421; Bayley on Bills, 179.

Story on Bills, ? 286; 1 Pars., N. & B., 485, note.

"Le 10x vs. Leverett, 10 Mass., 1.