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.1

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, as the better declaration of the law merchant.

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, after exercising reasonable diligence, is in a position to

1 Lawson v. Farmers' Bank, supra.

2 Bank of Utica v. Bender, 21 Wend. 643; L. C. 329; Gladwell v. Turner, L. R. 5 Ex. 59.

give notice. 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.

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 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 the first succeeding secular day is the day after maturity, and the only mail goes out before seasonable business in the morning, in which case the indorser, like the holder, has till the next mail. And,

1 Gladwell v. Turner, supra.

2 Id.

8 Fugitt v. Nixon, 44 Mo. 295; Manchester Bank v. Fellows, 28 N. H. 302.

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 more time for giving notice than a holder. Notice of dishonor might be received by an indorser on Sunday or some other non-secular 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 may, however, be sent, whether by the holder or by an indorser, on Sunday or other non-secular day, since notice is merely warning. So it is said.2

An agent for collection is treated as holder for the purpose of giving notice of dishonor, and his principal, if he indorsed the 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

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.

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.1

Paper may have been indorsed after maturity, and serious question has arisen concerning time of notice in such a case. It has sometimes been considered that the rules pertaining to indorsement of paper before maturity should not apply, in their strictness, if at all, to such a case; and accordingly notice of dishonor as late as two months after the dishonor, on the special demand now required, 2 has been deemed within reasonable time. It has even been stated that notice is altogether dispensed with in such a case. But the better view appears to be that the rules of ordinary indorsement apply. Indorsers of paper payable on its face on demand are entitled to notice in all respects as in other cases; and why the rule should be otherwise of paper indorsed after maturity, which now is in law payable on demand, it would be difficult to explain."

1 Lawson v. Farmers' Bank, 1 Ohio St. 206; L. C. 295, 307; Bank of United States v. Davis, 2 Hill, 452; Church v. Barlow, 9 Pick. 547 ; Crocker v. Getchell, 23 Maine, 392; Manchester Bank v. Fellows, 28 N. H. 302; Bray v. Hadwen, 5 Maule & S. 68; Prideaux v. Criddle, L. R. 4 Q. B. 455.

2 The paper having been indorsed after maturity, a new contract in regard to presentment arises, to wit, that the undertaking of the maker or acceptor is to pay on demand. See ante, p. 92.

3 Van Hoesen v. Van Alstyne, 3 Wend. 75. See also McKinney v. Crawford, 8 Serg. & R. 351; Gray v. Bell, 3 Rich. 71; Chadwick v. Jeffers, 1 Rich. 397.

4 Gray v. Bell, supra, O'Neall, J.

5 See Bassenhorst v. Wilby, 45 Ohio St. 333; Lockwood v. Crawford, 18 Conn. 361; Bishop v. Dexter, 2 Conn. 419; Berry v. Robinson, 9 Johns. 121; Course v. Shackleford, 2 Nott & M. 283; Poole v. Tolleson, 1 McCord, 199; Ecfert v. Des Coudres, 1 Mill, 69.

§ 7. NOTICE, WHERE.

The question where notice is to be given or sent has been indirectly answered already, in part; for we have seen that where the holder and the indorser reside in the same town the notice should be given to the indorser personally or left at his place of business or of residence, and that when they live in different places it should be sent to the indorser's address as far as ascertainable by reasonable diligence. That goes far towards answering the whole question now raised.

Notice may, however, be given to the indorser personally anywhere, wherever the holder or notifying indorser may happen to find him, so far as place is concerned; it may be given to him in his house or counting room, in the cars, or on the street, so long as it is good in other respects.1 And that because the notice is mere warning, and not intended or expected to be followed then and there by payment, as is presentment for payment.

It may be that the indorser has post-office addresses in different towns, or it may be that there are several postoffices within the same town at each of which the indorser is accustomed to receive his mail. In such a case a letter containing the notice may be addressed to the indorser at any one of such post-offices, or to the town without naming any particular post-office; and the proper deposit of the letter in the mail, whether at the post-office or in boxes placed for receiving mail, will itself be notice. Such act would be exercising reasonable diligence, and what may become of the letter will be immaterial.2

Where, however, there are several post-offices in the town of the indorser, notice by letter addressed to the indorser at the town generally is sufficient, unless the indorser 1 See Hyslop v. Jones, 3 McLean, 96.

2 See Roberts v. Taft, 120 Mass. 169.