Non-secular days.

interpreted by the law to mean, that presumptively notice should be given on one of the two days mentioned in the rule. If the day following maturity and dishonor should be a nonsecular day, or if, where the mail may be used there is no departure of the mail on the next day after maturity, the holder, supposing that he resides in a different town from that of the party to be notified, may wait in the one case until the first secular day, in the other, until the next departure of the mail after the day of maturity, however long that may be.1 It matters not that there was a regular departure of the mail on the day of maturity and dishonor. It will be observed that, while the occurrence of non-secular days cuts off grace, such occurrence adds to the time for giving notice.

If the person giving and the person to receive notice reside in the same town, notice of dishonor must, if given at the place of business of the party to be notified, be given before the close of business hours on the day following dishonor or of receiving notice. If it is given at the party's residence, it must be given before the usual hours of rest on such following day. If sent by mail, it must be deposited in the post-office soon enough to reach the party in usual course on such following day."

Several indorsements.

The length of time allowed to the holder for giving notice is not varied at all by the circumstance that there may be several indorsements upon the paper, and that he may wish to notify some other indorser than the last The holder may himself notify any indorser he will, notifying or not notifying others; but he has no more time for giving notice to the first or an intermediate indorser than to the

one.

...

1 N. I. L. § 111: 'Where the person giving and the person to receive notice reside in different places, the notice . . . if sent by mail . . . 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. 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'

sentence.

2 N. I. L. § 110, 3. This of course supposes that there is a mail delivery in the place.

last. It does not matter that as much or more time would be taken if notices were sent successively back from the last to the defendant indorser. For example (hypothetical): The defendant is first indorser and the plaintiff holder of a promissory note upon which there are five successive indorsements. Two days after the maturity and dishonor of the note, the plaintiff notifies the defendant, though the day after maturity was a secular day, with departure of mail during business hours. The notice is not seasonable.2

There is, however, some doubt concerning the meaning of the rule that the holder has until the day after maturity, or other day according to circumstances. The rule clearly One day for does not mean that notice must be posted, where giving notice: the mail may be used, on that day at all events. meaning. Not to speak of excuses, of which later, the only mail on the day in question may depart at an unseasonable hour in the morning for business; in such a case the law treats that day as if it were a non-secular day, so far as the sending of notice is concerned." But supposing that there is a departure of the mail after business hours have opened, on the day after dishonor, must the holder deposit his notice in the post-office in time for that mail?

It has been said that the holder has an entire day after the dishonor for giving notice; and that has sometimes been interpreted to mean that the holder has until the end of that day, so that the notice need not leave until the departure of the mail a day later. For example: A promissory note is due January 2. Demand is made, and payment refused on that day. Notice of dishonor is deposited in the post-office for the defendant at 10 o'clock at night, January 3; there have been departures of the mail since business hours of the morning to the place of the de

1 See N. I. L. §§ 110, 111: 'Where the person giving and the person to receive notice,' etc.; that is, whoever the person to be notified is.

2 See Simpson v. Turney, 5 Humph. 419.

See Lawson v. Farmers' Bank, 1 Ohio St. 206; Cases, 179; 3 Kent, 106, note. Notice put into the post-office on the next day at any time of the day, so as to be ready to go by the first mail that goes thereafter, is due notice, though it may not be mailed in season to go by the mail of the day next after the day of the default.'

fendant's residence, but the last mail has already departed, and the notice cannot go before January 4. The mailing of the notice is deemed seasonable.1

That doctrine, though having the support of a great judge, has been seriously questioned, and indeed denied by judicial authority to be a correct statement of the law merchant; the rule, so far as there is a rule so expressed, that the holder has an 'entire day' for giving notice, being considered only a general, and not an exact statement of the law. The true rule is accordingly deemed to be that the holder ought to avail himself at latest of some departure of the mail after the opening of business hours, if there be such mail, on the day following the dishonor. For example: The defendant, residing in Salem, Ohio, is indorser of a bill of exchange held by the plaintiffs, residing in Pittsburgh, Pennsylvania. The bill is dishonored and protested July 27. There is one, and only one, daily departure of the mail from Pittsburgh to Salem: to wit, at 9.10 o'clock A. M., which is after reasonable business hours of the day. Notice to the defendant is deposited in the mail on July 28, but too late for the mail of that day. The notice is deemed not seasonable; due diligence has not been exercised.

The rule declared in the case given in this example has this in its favor, that it was laid down upon mature consideration and upon a review of the authorities. A question which before had been but slightly considered has now been answered by deliberate judicial authority; and the rule is accordingly to be taken, it seems, in view of the absence of settled custom and the consequent doubt, as the better declaration of the law merchant.

4

Reasonable diligence, narrowly defined in certain cases, but not in others, is after all, as we have seen, the requirement in all cases. Accordingly the point of beginning, in reckoning the time for giving notice, is not the day after maturity, but the day after that on which the holder, upon

Reasonable diligence.

1 Lawson v. Farmers' Bank, referring to Kent, ut supra.

2 Peabody Co. v. Wilson, 29 W. Va. 528.

8 Lawson v. Farmers' Bank, supra.

Bank of Utica v. Bender, 21 Wend. 643; Cases, 191; Gladwell v. Turner,

L. R. 5 Ex. 59.

exercising reasonable diligence, is in a position to give notice.1 For example: The defendant is drawer and the plaintiff holder of a bill of exchange dishonored at maturity. On the morning after the dishonor of the bill, the holder, not knowing where the defendant lives, applies to one of the indorsers at his house for information, but not finding him at home, calls again at 5.30 in the afternoon, and now obtaining from him the defendant's address, posts notice the same evening after six o'clock. The defendant's liability is fixed, though he does not receive the notice on the day on which it was posted as he would have done had the notice been posted before six o'clock.2

It would have made no difference in the example had it appeared that the whole of the day and evening had been consumed, and all of the next day or week, in reasonable endeavor to find the address of the defendant; time reasonably consumed in finding the defendant or his address is to be deducted from the account. Nor, as has already been seen, would it have made any difference had the notice never been received, the mail being a proper vehicle for conveying it.

indorser.

Thus far of the time of notice when given by the holder. The time allowed an indorser is, generally speaking, the same as would be allowed if he were holder. He may Time allowed give notice on the day on which he received notice; he must give notice either on that day, or on the first succeeding secular day on which there is a departure of the mail to the indorser's place of residence where the mail may be used, unless on the first succeeding secular day the only mail goes out before seasonable business hours in the morning, in which case the indorser, like the holder, has till the next mail. And, like the holder, he has no more time for giving notice to a remote than to the last indorser.

There is one case in which, it seems, an indorser may have

1 Gladwell v. Turner, supra.

·

2 Id.

3 Fugitt v. Nixon, 44 Mo. 295; Manchester Bank v. Fellows, 28 N. H. 302. N. I. L. § 114: Where a person 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.

more time for giving notice than a holder. Notice of dishonor might be received by an indorser on Sunday or some other nonsecular day; but in such a case the indorser would not be bound to regard it until the first secular day following, so that the receiving of the notice could be reckoned, at the indorser's election, as from such secular day. Accordingly, the indorser would have that day and the next, even to the next secular day, if the morrow after the day from which the reckoning is begun should be non-secular, and until a departure of the mail, as already explained. For example (hypothetical): The defendant is first, and the plaintiff second, indorser of a promissory note. Due notice of dishonor has been sent to the plaintiff. The notice is received on Sunday, July 3. The following day being a holiday, the plaintiff treats the 5th of July as if it were the day on which he received the notice, and mails notice to the defendant on the 6th of July (or if there is no departure of the mail to the destination of the notice on the 6th, or if the only departure is before reasonable business of that day, then so as to go by the first mail afterwards). The notice is (probably) seasonable.1

Notice sent on non-secular

day.

as holder.

Notice may, however, be sent, whether by the holder or by an indorser, on Sunday or other nonsecular day, since notice is merely warning.'

An agent for collection is treated as holder for the purpose of giving notice of dishonor, and his principal, if he indorsed the Agent treated paper, is accordingly treated as an ordinary indorser; that is, the case is regarded as if it were not a case of agency. In other words, the real holder and owner, if an indorser, stands upon the footing of an indorser in regard to the question of time in giving notice of dishonor. Thus the agent has the same time for notifying his principal which any other holder would have; and the principal has the same time he would have if the agent had been owner of the paper.3

1 See Wright v. Shawcross, 2 Barn. & Ald. 501, note; Bray v. Hadwen, 5 Maule & S. 68; Deblieux v. Bullard, 1 Rob. (La.) 66.

2 Deblieux v. Bullard, supra.

N. I. L. § 101; Lawson v. Farmers' Bank, 1 Ohio St. 206; Cases, 179; Bank of United States v. Davis, 2 Hill, 452; Church v. Barlow, 9 Pick. 547;