OF THE TIME WHEN NOTICE OF THE DISHONOR OF A NOTE OR BILL MUST BE GIVEN.

LENOX ET AL. v. ROBERTS.

In the Supreme Court of the United States.

FEBRUARY TERM, 1817.

[REPORTED 2 WHEATON, 373-377.]

A demand of payment of a promissory note must be made of the maker, on the last day of grace; and where the endorser resides in a different place, notice of the default of the maker should be put into the post office early enough to be sent by the mail on the succeeding day.

THIS was a suit in chancery, brought by the appellants against the respondent in the Circuit Court of the District of Columbia, for the county of Alexandria; the complainants, in their bill, stated that the president, directors, and company of the Bank of the United States, by their deed, assigned to Thomas Willing, and others, their executors, administrators, and assigns,

*383] all and singular the mortgages, judgments, suits, bonds, bills, notes, debts, securities, contracts, goods, chattels, money and effects, whatsoever, due or belonging to the bank; together with all the ways, means and remedies, for the recovery of the same, upon the especial trust in the deed expressed. That the said Thomas Willing, and the others, afterwards assigned to the complainants, all and singular the debts included in the deed to them. The bill further stated, that one Janney, made and delivered to the defendant five promissory notes, dated and payable at Washington, and for the following sums, to wit: one note for $1,000, payable in sixty days from the 22d February, 1809, &c.; amounting in the whole, to $4,020. That the defendant discounted the said notes in the Branch Bank of the United States, at Washington, about the times they bear date, and endorsed the same at Washington. That Janney did not pay the notes when they

became due, and that he was insolvent when the notes became due. That the notes being made and dated in the county of Washington, were subject to the laws prevailing in Washington county, and the defendant bound to pay, on failure of Janney to pay. The complainants claimed these debts as proprietors thereof; and called on the defendant especially to state whether Janney was not insolvent when the notes became due; whether the said notes were not duly protested for non-payment, and the defendant in due time notified thereof, and did not attempt to secure himself by some lien on Janney's property. The bill concluded by praying a decree against the defendant, for the amount of said notes. The defendant, in his answer, did not admit that the complainants were duly authorized to recover and receive the debts due to the bank; but he admitted that the notes were by him endorsed in blank, and delivered to Janney, but contended that they were not obtained to be discounted in the Bank of the United States; nor were discounted for the benefit of the defendant, but for the use and benefit of Janney, who received the money from the bank. And that it was well known to the president and directors of the bank, that the said notes were endorsed by the defendant for the accommodation of the said Janney, without any value being received by the defendant. The defendant's answer farther alleged, that due and legal notice was not given by him of the non-payment of the notes; that no demand of payment of the notes was made of Janney, by the bank; that the notes were all dated at Alexandria; that Janney, on the 29th of May, conveyed all his property to one Scott, in trust for the payment of his debts, including the debt to the bank.

[*384

*There was some contrariety of evidence as to the time. when payment of the notes was demanded of the maker, and the time when notice to the defendant as endorser, who resided in Alexandria, was put into the post office at Washington. The bill was dismissed by the court below, on which the cause was brought by appeal to this court.

Mr. Swann, for the appellants, Mr. Lee, for the respondent.

MARSHALL, C. J., delivered the judgment of the court.

The court will not give any opinion whether any action can be maintained at law upon any of the promissory notes in the record, by an assignee who does not claim the same by an endorsement

upon the notes. For, in this case, there is no specific assignment of these notes; the only assignment is a general assignment, in trust, of all the property of the late Bank of the United States, and, as the act of incorporation had expired, no action could be maintained at law by the bank itself. Under these circumstances, the court is clearly of opinion that a suit may be maintained in equity against the other parties to the notes. Another question arises in the cause, whether the endorsers have had due notice of the non-payment by the makers? As there is some contrariety of evidence in the record, the court will only lay down the rule. And it is the opinion of the court, that a demand of payment should be made upon the last day of grace, and notice of the default of the maker be put into the post office early enough to be sent by the mail of the succeeding day.

Decree reversed.

*385]

*THE PRESIDENT, DIRECTORS AND COMPANY OF THE BANK OF ALEXANDRIA, PLAINTIFFS IN ERROR, v. THOMAS

SWANN.

In the Supreme Court of the United States.

JANUARY TERM, 1835.

[REPORTED FROM 9 PETERS, 33–47.]

The law does not require the utmost possible diligence in the holder in giving notice of the dishonor of a note. All that is required is ordinary reasonable diligence; and what shall constitute reasonable diligence ought to be regulated with a view to practical convenience, and the usual course of business; and is a question of law. Notice need not be sent on the day of the dishonor. It will be in due time, if sent by the mail, the next day after the dishonor of the note.

THIS suit was brought in the Circuit Court of the District of Columbia, for the county of Alexandria, upon a promissory note made by Humphrey Peake, and endorsed by the defendant in The note bore date on the 23d day of June, 1829, and was for the sum of $1400, payable sixty days after date at the bank of Alexandria. On the last day of grace the note was duly presented,

error.

and demand of payment made at the bank, and protested for nonpayment. On the next day notice thereof was sent by mail to the endorser, who resided in the city of Washington; but in the notice the note was described as for $1457. In all other respects the description was correct. In the margin of the note was set down in figures 1457; the note had in fact been discounted at the bank, as and for a note of $1457; and from the 5th day of February, 1828 (the date of a note for which the one now in question was a renewal), down to the day of the trial of the cause below, there had been no other note of Humphrey Peake endorsed by the defendant in error, discounted by the bank, or placed in the bank for collection or otherwise.

According to the course of the mail from Alexandria to the city of Washington, all letters put into the mail before half-past eight o'clock P. M., at Alexandria, would leave there some time during that night, and would be deliverable at Washington the next day, at any time after eight o'clock a. M.

Upon the trial the jury found a special verdict, setting forth the above stated facts, upon which the court gave judgment for the defendant, and the case came, upon a writ of error, before the Supreme Court, where two question arose:

[*386

1. Whether notice of the dishonor of the note was given to the endorser in due time?

2. Whether such notice contained the requisite certainty in the description of the note?

Mr. Justice THOMPSON delivered the opinion of the court.

The general rule, as laid down by this court in Lenox v. Roberts, 2 Wheaton, 373, is, that the demand of payment should be made on the last day of grace, and notice of the default of the maker be put into the post office early enough to be sent by the mail of the succeeding day. The special verdict in the present case finds, that according to the course of the mail from Alexandria to the city of Washington, all letters put into the mail before half-past eight o'clock P. M., at Alexandria, would leave there some time during that night, and would be deliverable at Washington the next day, at any time after eight o'clock a. M.; and it is argued on the part of the defendant in error, that as demand of payment was made before three o'clock P. M., notice of the nonpayment of the note should have been put into the post office on VOL. I.-31

the same day it was dishonored, early enough to have gone with the mail of that evening. The law does not require the utmost possible diligence in the holder in giving notice of the dishonor of the note; all that is required is ordinary reasonable diligence; and what shall constitute reasonable diligence ought to be regulated with a view to practical convenience, and the usual course of business. In the case of the Bank of Columbia v. Lawrence, 1 Peters, 583, it is said by this court to be well settled at this day, that when the facts are ascertained, and are undisputed, what shall constitute due diligence is a question of law: that this is best calculated for the establishment of fixed and uniform rules on the subject, and is highly important for the safety of holders of commercial paper. The law, generally speaking, does not regard the fractions of a day; and although the demand of payment at the bank was required to be made during banking hours, it would be unreasonable, and against what the special verdict finds to have been the usage of the bank at that time, to require notice of non-payment to be sent to the endorser on the same day. This usage of the bank corresponds with the rule of law on the subject. If the time of sending the notice is limited to a fractional part of a day, it is well observed by Chief Justice Hosmer in the case of the Hartford Bank v. Stedman and *Gordon, 3 Connecti#387] cut, 495, that it will always come to a question, how swiftly the notice can be conveyed. We think, therefore, that the notice sent by the mail, the next day after the dishonor of the note, was in due time.

The next question is, whether, in the notice sent to the endor ser, the dishonored note is described with sufficient certainty.

The law has prescribed no particular form for such notice. The object of it is merely to inform the endorser of the non-payment by the maker, and that he is held liable for the payment thereof.

The misdescription complained of in this case, is in the amount of the note. The note is for $1400, and the notice describes it as for the sum of $1457. In all other respects the description is correct; and in the margin of the note is set down in figures 1457, and the special verdict finds that the note in question was discounted at the bank, as and for a note of $1457 and the question is, whether this was such a variance or misdescription as might reasonably mislead the endorser as to the note, for payment of which he was held responsible. If the defendant had been an endorser of a number of notes for Humphrey Peake, there might be