tice, although such delay as prevents the person getting notice, even for one post, from sending advice to his correspondent, will probably be fatal. It would likewise appear that in such a case the holder must prove the safe arrival of the letter. But when a person, instead of sending notice directly by post, writes to a correspondent on the spot to give notice, and that correspondent goes to the defendant's warehouse for this purpose, sooner than a letter could have reached him by post, but is prevented by finding the warehouse shut during business hours, the defendant cannot plead the lateness of the notice." 17

§ 1034. It has been held in some cases that where the party entitled to notice resides at a point remote from any post-office, the holder must send notice by a special messenger.18 But it seems to us that it could not be reasonably expected of the holder to send notice to a party exiled from communication with the world; or reasonable to presume that the party did not at convenient periods inquire at the nearest post-office- and that sending the notice to such post-office is all that should be required.19

Ford, J.,
Ford, J., said: 21

"One who becomes a party to a commercial instrument should be considered as rendering himself subject to commercial law and urage," is the very just observation of the annotators of the American Leading Cases on this question.20 And the language of the court in a case just quoted, if a little stilted, embodies the true wisdom of the subject, as it seems to us. "If persons residing far from a post-town, aside from the common walks of gregarious commerce, will give their names in guaranty of commercial paper, it is better that they should be held to inquire for letters at the nearest post-office about the time such paper comes to maturity, than that the holder should be compelled to send a special messenger one hundred and fifty miles to serve personal notice, or that an established system of notice, sufficiently complex already, should be forced to give way to the introduction of novel exceptions, imposing burdensome, expensive, and hazardous duties on all men of business, merely out of favor to eccentric

17. Thompson on Bills, 340; Bancroft v. Hall, Holt, 476.

18. Fish v. Jackman, 19 Me. 467; Farmers' Bank v. Butler, 3 Litt. 498; Bedford v. Hickman, 1 Yerg. 166.

19. State Bank v. Ayres, 2 Halst. 130; Story on Bills, § 297.

20. 1 Am. Lead. Cas. 403.

21. State Bank v. Ayres, 2 Halst. 130.

residences."

When the messenger was necessary, or most convenient, his reasonable expenses are chargeable to the party receiving notice. 22

SECTION VII.

TIME WITHIN WHICH NOTICE MAY AND MUST BE GIVEN.

1035. In the first place, as to the time within which notice may be given. It is quite clear that notice of dishonor implies the dishonor as taking place before the notice. Knowledge by anticipation that the instrument will be dishonored does not affect the rule, and if notice be given beforehand. it is premature and ineffectual.23

The language of the earlier authorities was, that notice of dishonor should be given "within a reasonable time" after the dishonor had occurred, and the like expression is still sometimes met with; but the period allowed the holder is now so definitely limited and fixed that this phrase is entirely too loose and general to convey a correct idea of the requirements of the law.25

§ 1036. As to the time of the day of dishonor at which the holder may give notice, it is well settled that as soon as the demand is made, and the dishonor has occurred, the holder need not wait until the close of business hours to send notice.2 Mr. Chitty

26

22. Pearson v. Crallan, 2 J. P. Smith, 404 (King's Bench).

23. Jackson v. Richards, 2 Cai. 343; Chitty on Bills [*482], 544. 24. Story on Bills, § 285; 1 Parsons on Notes and Bills, 507; Chitty on Bills, chap. 8, p. 366. There was formerly a statute in Virginia which allowed eighteen months as a reasonable time within which to give notice of protest of a bill of exchange. It was considered in Stott v. Alexander, 1 Wash. 335 (1794), in which case the bill was protested in September, 1787, and notice given in June, 1788, and the court, by its president, Edmond Pendleton, said: "No facts being stated to take this case out of the general rule before mentioned, and established by the act of the Assembly, we are of opinion that the notice is reasonable." This statute was repealed in 1792, and is quoted as a curious relic. Both in England and Scotland formerly there was no fixed time within which it was necessary to give notice; the new rule is as certain as a statute. See Thompson on Bills, 346; Patillo v. Alexander, 96 Ga. 60, 22 S. E. 646, citing text.

25. 1 Parsons on Notes and Bills, 507; Deininger v. Miller, 7 App. Div. 409, 40 N. Y. Supp. 195, citing the text; Apple v. Lesser, 93 Ga. 749, 21 S. E. 171, citing text.

26. Bank of Alexandria v. Swan, 9 Pet. 33; Lenox v. Roberts, 2 Wheat. 373; Coleman v. Carpenter, 9 Barr, 178; Price v. Young, 1 McCord, 339. In Er

has well expressed the law on this subject: "It has been doubted whether, in the case of an inland bill or promissory note payable after date or sight, or on a particular event, the holder can legally give notice of the nonpayment on the day when it falls due, or whether the drawee or maker is not entitled to the whole of that day to pay it in, without any reference to banking hours, and whether it can be considered as dishonored until the whole of that day has elapsed.27 But though in general, when a payment is to be made on a day certain, the party is not in default until the expiration of it, the law merchant considers the contract of an acceptor of a bill, or maker of a note, to have been to pay on demand at any part of that day, and therefore it seems clear that notice of nonpayment may be given on the last day of grace, whenever, after due presentment and demand, the drawce makes an unqualified refusal to pay at all.28 And in a more recent case it was held that notice of dishonor may be given on the same day that the bill falls due, although there may not have been an absolute refusal, but a mere neglect to pay on presentment." If the house at which the bill is payable be shut up, and no one there, it is the same as a refusal.30 It should seem that in these cases of notice of dishonor, given on the day on which the bill is pavable, the notice will be good or bad, as the acceptor may or may not afterward pay the bill; if he does not afterward pay it [on that day], the notice is good; and if he does, it of course comes to nothing."

" 31

29

parte Moline, 19 Ves. 216, a demand on the acceptor at 11 A. M., and notice sent immediately, warranted proof of debt against the drawer, who had become bankrupt. Lord Eldon said: "I do not recollect any decision that if an acceptor declares at 11 o'clock in the morning that he will not pay, notice of that to the drawer is not good. If the law does not impose on the holder the duty of inquiring again before 5 o'clock, it would be extraordinary that this information to the drawer of an answer precluding any hope of obtaining anything by calling again, should not have effect." Story on Bills, § 290; Byles on Bills (Sharswood's ed.) [*276], 428; Thompson on Bills, 348; Edwards on Bills, 615, 622.

27. Leftly v. Mills, 4 T. R. 170; Haynes v. Birks, 3 Bos. & P. 602; Colket v. Freeman, 2 T. R. 59; Hartley v. Case, 1 Car. & P. 555, 4 B. & C. 339.

28. Burbridge v. Manners, 2 Campb. 195; Hartley v. Case, 1 Car. & P. 556; Ex parte Moline, 19 Ves. 216; King v. Crowell, 61 Me. 244.

29. Clowes v. Chaldecott, 7 L. J. K. B. 147.

30. Hine v. Allely, 4 B. & Ad. 624, 1 Nev. & M. 433.

31. Chitty on Bills (13th Am. ed.) [*482], 544; Hartley v. Case, 1 Car. & P. 556, Abbott, C. J.

§ 1037. Notice on very day of dishonor not obligatory. It is also certain that the holder is not obliged to give notice immediately on the very day of the dishonor," although he 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. Notice left with an indorser on Sunday has been held sufficient, the following Monday being in time to serve it.33

§ 1038. In the second place, as to the time within which notice may be given, when the holder and the party entitled to notice 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.35

§ 1039. In the third place, as to the time within which notice must be given when the parties reside in different places, and there is mail communication between them, the rule laid down by the United States 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

32. Darbishire v. Parker, 6 East, 8, 2 Smith, 195; Tindall v. Brown, 1 T. R. 168; Burbridge v. Manners, 3 Campb. 193; Russell v. Langstaffe, Doug. 515; Muilman v. D'Eguino, 2 H. Blackst. 565; Phelps v. Stocking, 21 Nebr. 444, citing the text; Chitty on Bills [*482], 544,

33. Carlisle Deposit Bank v. Rheem, 10 Phila, 462.

34. Jameson v. Swinton, 2 Taunt. 224; Bayley on Bills, 176; Deininger v. Miller, 7 App. Div. 409, 40 N. Y. Supp. 195, citing the text; Whiting v. City Bank, 77 N. Y. 363; Standard Sewing Machine Co. v. Smith, 1 Marv. 330, 40 Atl. 1117.

35. Adams v. Wright, 14 Wis. 408; Cayuga County Bank v. Hunt, 2 Hill (N. Y.), 635; Crosse v. Smith, 1 Maule & S. 545; Garnett v. Woodcock, 6 Maule & S. 44; Parker v. Gordon, 7 East, 385; Allen v. Edmundson, 2 Car. & K. 547; Story on Bills, § 290.

convenient business hours of that day; in which case it must be sent by the next mail thereafter.36

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, either expressly or by implication, and, it seems to us, adopts the only principle which may be safely followed in all cases.37

§ 1040. Chancellor Kent has expressed the opinion that it would be sufficient to mail the notice at any time on the day after dishonor, 38 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.39 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

36. Fullerton v. Bank of the United States, 1 Pet. 605; Bank of Alexandria v. Swann, 9 Pet. 33; Lenox v. Roberts, 2 Wheat. 373; United States v. Barker, 12 Wheat. 559, 4 Wash. 465. These cases do not state the rule as broadly laid down in the text, but they are not inconsistent with it, as explained in the case of Lawson v. Farmers' Bank, 1 Ohio St. 206 a most learned and instructive case on the subject of notice. Johnson v. Brown, 154 Mass. 105, 27 N. E. 994, holds that "A notice of the nonpayment of a promissory note, addressed to the indorser and deposited in a post-office bor in the street, is duly mailed to him." Western Wheeled Scraper Co. v. Sadilek, 50 Nebr. 105, 69 N. W. 765, 61 Am. St. Rep. 550, citing text.

37. Farmers' Bank v. Duvall, 7 Gill & J. 78; Lawson v. Farmers' Bank, 1 Ohio St. 206; Carter v. Burley, 9 N. H. 558; Sussex Bank v. Baldwin, 2 Harr. 487; Wemple v. Dangerfield, 2 Smedes & M. 445; Downs v. Planters' Bank, 1 Smedes & M. 261; Mitchell v. Cross, 2 R. I. 437; Burgess v. Vreeland, 4 N. J. 71; Howard v. Ives, 1 Hill (N. Y.), 263; Hartford Bank v. Stedman, 3 Conn. 489; Chick v. Pillsbury, 24 Me. 458; Eagle Bank v. Chapin, 3 Pick. 180; Manchester Bank v. Fellows, 8 Fost. 302; 1 Parsons on Notes and Bills, 511; Redf. & Big. Lead. Cas. 393, 1 Am. Lead. Cas. 390; Story on Bills, § 288; Darbishire v. Parker, 6 East, 3; Haynes v. Birks, 3 Bos. & P. 599; Saunderson v. Saunderson, 20 Fla. 304; Insurance Co. v. Wilson, 29 W. Va. 546, citing the text; Rosson v. Carroll, 90 Tenn. 90, 16 S. W. 66, quoting text with approval; Bank v. Bradley, 117 N. C. 526, 23 S. E. 455, citing the text; Apple v. Lesser, 93 Ga. 749, 21 S. E. 171, citing text; Corbin v. Planters' Nat. Bank, 87 Va. 666, 13 S. E. 98, 24 Am. St. Rep. 673, citing text.

38. 3 Kent Comm. 106, note e.

39. 1 Parsons on Notes and Bills, 508, 509.