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.75

"If, with the ports of the country where the bills are protested, the communication is irregular, or at different seasons by different routes or ways of conveyance, that should be adopted to send the notice, which may reasonably be presumed to be the most certain and expeditious, under all the circumstances." 76

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.77

SECTION VIII.

THE ALLEGATION AND PROOF OF NOTICE.

§ 1047. First, as to the allegation of notice. Byles states that "it was formerly considered doubtful78 whether such facts as dispense with presentment, protest, or notice of dishonor could or could not be given in evidence, in support of the common allegations of presentment, protest, or notice in the declaration." But that “it is now, however, clear that facts dispensing with presentment or notice, such as absence of effects in the drawee's hands, or a countermand of payment by the drawer, must be specially alleged in the declaration, and that proof of those facts is inadequate to the support of a positive averment of presentment, protest, or notice." 79 He adds: "But if it should distinctly ap

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 post-office, 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.) [*272], 421; Bayley on Bills, 179.

75. Story on Bills, § 286; 1 Parsons on Notes and Bills, 485, note. 76. Story on Bills, § 286.

77. Lenox v. Leverett, 10 Mass. 1.

78. Citing Cory v. Scott, 3 B. & Ald. 619; Bayley on Bills (5th ed.), 406. 79. Byles on Bills [*409], 595, 596, and [*293], 453, citing Bourgh v. Legge,

5 M. & W. 418. See Terry v. Parker, 6 Ad. & El. 502, Nev. & P. 752; Carter v. Flower, 16 M. & W. 749.

pear in evidence that there has been a neglect to present, and that the defendant, being aware of the omission, afterward promised to pay, so that the promise is used as a waiver, it is conceived that the declaration must still be special. It may be otherwise, when there has been a neglect to give notice of dishonor, and a promise to pay, with notice of the omission, has been afterward made before action brought, for then the defendant has, in the words of the declaration, had notice of the dishonor, which notice, under the circumstances, may be deemed as against him due notice. But the law on this subject does not appear to be very clearly settled.80 It seems, however, that notice too late in the usual course, but reasonable and sufficient under the special circumstances, may be proved under the ordinary allegation.81

1048. In the United States, the authorities on this subject are not entirely harmonious; but the view of Mr. Greenleaf is that circumstances of excuse or dispensation with presentment, protest, and notice, may be shown under an averment of due presentment, protest, and notice, “the evidence being regarded not strictly as matter in excuse, but as proof of a qualified presentment and demand, or of acts which, in their legal effect and by the custom of merchants, are equivalent thereto." 82 This we think is the better view, and it is sustained by decisions of the highest respectability. In Massachusetts it is settled by a series of decisions that in an action by the indorsee against the indorser of a note, evidence of a waiver of demand, protest, and notice is sufficient in support of an averment of demand, protest, and notice,& and in other States the same view has been adopted.84 Edwards

83

80. Citing, see Brownell v. Bonney, 1 Q. B. 39, 3 Man. & R. 359, Dans. & L. 151; Firth v. Thrush, 8 B. & C. 387; Baldwin v. Richardson, 1 B. & C. 245, 2 Dowl. & R. 285.

81. Citing Carter v. Flower, 16 M. & W. 749.

82. 2 Greenleaf on Evidence, § 197.

83. Armstrong v. Chadwick, 127 Mass. 756; Harrison v. Bailey, 99 Mass. 620; Taunton Bank v. Richardson, 5 Pick. 436, 444; Jones v. Fales, 4 Mass. 245; City Bank v. Cutter, 3 Pick. 414; North Bank v. Abbott, 13 Pick. 465; Kent v. Warner, 12 Allen, 561. This, however, has been there regarded as an exception "to an established and most salutary rule of evidence," and held not applicable to other executory agreements in Colt v. Miller, 10 Cush. 51.

84. Tobey v. Berly, 26 Ill. 426; Norton v. Lewis, 2 Conn. 478 (waiver before maturity); Camp v. Bates, 11 Conn. 488, 493 (waiver after maturity); Windham Bank v. Norton, 22 Conn. 214, 219; Kennen v. McRea, 7 Port. 176, 186.

states on English authority that a waiver of notice before dishonor cannot be proved under an allegation of due notice;85 but this is not the prevailing rule in the United States.86

§ 1049. Rule in the United States. So it may be regarded as established in the United States, that evidence of due diligence in the holder to obtain payment, and to make protest and give notice, is admissible under the general averment of due demand, protest, and notice.87 Thus, where the maker of a note could not be found at his store, and a demand was made on his clerk, it was not thought necessary to aver this fact specifically, but that it might be shown under an allegation of due demand upon the maker. So where the drawer of a check stopped payment, and due notice was averred, it was held that the averment might be disregarded as surplusage, and the defendant was held bound.88

§ 1050. Second, as to proof of notice. The burden of proving that notice was duly given so as to charge the drawer of a bill, or the indorser of a bill or note, rests upon the plaintiff. And this burden he may bear in two ways: First, by proving due and legal diligence used in giving notice to the party entitled thereto, in which case the legal presumption of its due receipt will attach and obviate the necessity of further evidence.89 Or, second, by proving that notice was actually received in due time, in which case it matters not what means of communication was employed." See also Spann v. Balzell, 1 Fla. 302; Shirley v. Fellows, 9 Port. 300; McVeigh v. Bank of Old Dominion, 26 Gratt. 799, Moncure, P.; Redf. & Big. Lead. Cas. 417; 2 Smith's Lead. Cas. 74.

85. Edwards on Bills, 636.

86. Norton v. Lewis, 2 Conn. 478.

87. Stewart v. Eden, 2 Cai. 127; Williams v. Matthews, 3 Cow. 262; Ogden v. Conley, 2 Johns. 274. See also Saunderson v. Judge, 2 H. Bl. 510. Contra, Curtis v. State Bank, 6 Blackf. 314. In England the rule is different.

v. Edmundson, 17 L. J. (N. S.), C. L. 291 (1848), 2 Exch. 719.

Allen

88. Purchase v. Mattison, 6 Duer, 592. See also Jacks v. Darrin, 3 E. D. Smith, 558 (Professor Parsons in vol. II, Notes and Bills, p. 72, quotes these cases by mistake for the opposite doctrine).

89. Lambert v. Ghiselin, 9 How. 552; Saco Nat. Bank v. Sanborn, 63 Me. 340; Shed v. Brett, 1 Pick. 401, the court saying: "An averment of notice will be sufficiently proved by showing that the steps necessary to give the notice have been taken; if subsequently received, it will relate to the time when it was sent; if never received, the fact of having put it in the proper train is enough." Bettis v. Schreiber, 31 Minn. 332, citing the text.

90. Dickens v. Beal, 10 Pet. 572; First Nat. Bank v. Wood, 51 Vt. 471. See §§ 1000, 1003. An admission in writing by the indorsers of the due presentVOL. II-7

Presumptions of due notice may also be created by proof of promise to pay, or part payment, in the manner elsewhere considered.o1 An admission or acknowledgment of notice is presumptive evidence of notice.92

§ 1051. The plaintiff must distinctly show that notice was given on the proper day; it will not suffice to show that it was given on one of two days, because the latter would be too late.93 But when

ment of note for payment, and of the nonpayment thereof, is sufficient evidence of the fact that the note was duly presented, was dishonored, and that notice of dishonor was duly sent to the indorsers. Chapman v. Ogden, 37 App. Div. 355, 56 N. Y. Supp. 73.

91. See chapter XXXV.

92. Todd v. Neal's Admr., 49 Ala. 266; Donegan v. Wood, 49 Ala. 242. 93. Lawson v. Sherwood, 1 Stark, 314 (2 Eng. C. L.). In Friend v. Wilkinson & Hunt, 9 Gratt. 31, two bills payable in Cincinnati were protested for nonpayment, on February 1, 1850, and notice was due to the Bank of Virginia, at Charleston, Kanawha county, Va., which had transmitted it for collection. Judge Allen, who rendered the opinion of the court, said: "A notice of protest dated at Cincinnati on the 1st day of February, 1850, was sent by mail to the cashier of the Bank of Virginia at Charleston, Kanawha county, Va., and was received on the night of the 7th of February, inclosed in a letter postmarked Cincinnati, Ohio, and was handed to Friend, the indorser, on the next day. It was further proved that a letter would arrive at Charleston in four or five days after it was mailed in Cincinnati, if it came by the direct route. If sent by another route, a letter might be ten or twelve days on the way; or that it might be, and letters sometimes were, delayed at Chilicothe, Ohio, by the regulations in regard to the departure of the mail on the regular route from Cincinnati. Upon this proof the question arises whether Friend had due notice of the dishonor of the bill. The Bank of Virginia, at Charleston, Kanawha, is to be treated as a distinct holder, the bill having been placed there for presentment and collection; and notice was given by it in due time after it was received from Cincinnati. The party not residing in or near the city of Cincinnati, a notice sent by the mail of the next day, or the next practicable mail, would be sufficient, and the burden of proving a reasonable notice is on the plaintiff. It is, where notice is required, a condition precedent to his right to recover, and he must show a strict performance. In this case it does not appear whether there was a daily mail between Cincinnati and Charleston or not; nor when the notice was put in the post-office to be mailed. It is dated on the 1st and was received on the night of the 7th of February; and the proof is that a letter would arrive at Charleston in four or five days after it was mailed at Cincinnati if it came by the direct route. The notice, therefore, might have been placed in the office and mailed on the morning of the 4th, and have arrived after night on the 7th, according to this evidence. Being protested on the 1st, it should have been placed in the office to be sent by the mail of the next day, unless that was Sunday, and if so, by the mail of the 3d of February, if there was

94

it is shown that the notice was on the proper day deposited in the post-office, properly addressed in respect to name and post-office, no further proof is necessary, as due diligence will then have been exercised. If notice be given by letter, its contents may be shown without a notice to produce the letter.95 If it were given by one of two duplicate notices, evidence may be given of sending one, and then the other offered to the jury without notice to produce the one sent.96 A finding that a notice the contents of which are unknown was served is not equivalent to finding that notice of protest, much less that sufficient notice of protest, was served.97

96

§ 1052. Postmark as evidence. A postmark is prima facie,98 but not conclusive," evidence that notice was mailed on the day designated; and when one puts a letter in the mail on the day that it ought to be received he must show that it was posted in

such mail, or if not, by the next practicable mail; and it was incumbent on the plaintiff below to show the time it was so placed in the office to be mailed. The notice may have been put in the office to be mailed on the 2d, and not have been received until the night of the 7th; if so, it would have been sufficient; but it might have been put in the office and mailed on the 3d or 4th and received at the same time; if so, it was too late, unless that was the first mail after the dishonor of the bill. And these were matters which the plaintiff was bound to prove, and probably could have done so by an examination of the notary." Rosson v. Carroll, 90 Tenn. 90, 16 S. W. 66, quoting with approval the text; Malott v. Jewett, 1 Kan. App. 14, 41 Pac. 674; German Security Bank v. McGarry, 106 Ala. 633, 17 So. 704.

94. Bussard v. Levering, 6 Wheat. 102; Dickens v. Beal, 10 Pet. 572; Shed v. Brett, 1 Pick. 401; Briggs v. Hervey, 130 Mass. 186.

95. Eagle Bank v. Chapin, 3 Pick. 180; Lindenberger v. Beall, 6 Wheat. 104; Leavitt v. Simes, 3 N. H. 14; Kine v. Beaumont, 3 B. & B. 288, 7 J. B. Moore, 112; Roberts v. Bradshaw, 1 Stark. 28, overruling earlier cases; 2 Parsons on Notes and Bills, 490, note.

96. Ackland v. Pearce, 3 Campb. 599; Roberts v. Bradshaw, 1 Stark. 28; 2 Parsons on Notes and Bills, 491.

"There is no pre

97. In Couch v. Sherrill, 17 Kan. 622, Brewer, J., said: sumption in favor of the action of the notary as official action, because it is no part of his official duty as notary to serve notice. If he serve any notice it is as agent of the holder, and not as notary. Hence, the finding as to notice is to be treated as though notice had been served by the holder. Now what notice was served? It does not even appear to have been

notice of protest."

98. Early v. Preston, 1 Pat. & H. 228; Crawford v. Branch Bank, I Ala. 205; New Haven County Bank v. Mitchell, 15 Conn. 206; Arcangelow v. Thompson, 2 Campb. 620; Rex v. Plumer, Russ. & R. 264; Langdon v. Hulls, 5 Esp. 156; Fletcher v. Braddyll, 3 Stark. 64.

99. Stocken v. Collin, 7 M. & W. 545, 9 Car. & P. 653 (38 Eng. C. L.).