Care must be taken by the holder that notice is not given too early. It has been repeatedly decided that it may be given on the last day of grace, after default made.(1) But the notice must not be until after proper hours; as ex. gr., where the note is payable at bank, after bank hours; or where not at bank, then after the close of usual business hours; and in places where there are no such hours, then after sunset on the day of its dishonor.(2)

In some of the States it has been decided that not only notice of dishonor may be given, but the maker of a note may be sued on the last day of grace, after default, and the drawer or endorser, on the same day, after notice;(3) but he must of course be careful that the notice has been given before he begins his suit, and prove this on the trial.(4) But the question whether notice of protest may be given, is not the same with the question whether suit may be brought, on the last day of grace; and it seems to be more correctly decided in Osborn v. Moncure, 3 Wendell, 170, that though a note is dishonored if not paid on demand on the last day of grace, yet that the maker cannot be sued on that day, as he has till the last instant of that day for making payment, if he chooses to seek the holder, and in regard to legal proceedings there are no fractions of a day; and this is confirmed in Wilcombe v. Dodge, 3 California, 262; and not denied in Mc Farland v. Reo, 8 Id. 635; Thomas v. Shoemaker, 6 Watts & Sergeant, 179; Coleman v. Carpenter, 9 Barr, 178; and Wiggle et al. v. Thomason, 11 Smedes & Marshall, 452; and by dicta in Thorpe v. Pecks, 28 Vermont, 129. In Bevan et al. v. Eldridge, 2 Miles, 353, it is applied in the case of an endorser.

Before suit can be brought against an endorser, there must be a right of action by notice or due diligence; and in Massachusetts and Maine it has been decided, that, where the parties live in different places, putting a letter of notice seasonably into the post office is in itself due diligence or constructive notice, and suit may therefore be commenced immediately after the letter is mailed, and without waiting for the notice to be received.(5) In Pennsylvania, however, it has been held that where

(1) Burbridge v. Manners, 3 Campbell, 193; Bussard v. Levering, 6 Wheaton, 102; Linderberger v. Beall, Id. 104; Corp v. McComb, 1 Johnson's Cases, 328; Farmers' Bank of Maryland v. Duvall, 7 Gill & Johnson, 79, 89; Smith v. Little, 10 New Hampshire, 526, 532; McClane v. Fitch, &c., 4 B. Monroe, 599; Coleman v. Carpenter, 9 Barr, 178; King v. Holmes, 1 Jones, 456.

(2) Toothaker v. Cornwall, 4 Calif. 29.

(3) Staples and another v. Franklin Bank, 1 Metcalf, 43; Greeley et al. v. Thurston, 4 Greenleaf, 479; Flint v. Rogers, 15 Maine, 67; Ammidown v. Woodman, 31 Maine, 582; Coleman v. Ewing, 4 Humphreys, 241; Wilson v. Williman, 1 Nott & McCord, 440; dictum in Dennie v. Walker, 7 New Hampshire, 199, 201; and decision in Manchester Bank . Fellows, 8 Foster, 314.

(4) Manchester Bank v. Fellows, 8 Foster, 314.

(5) New England Bank v. Lewis et al., 2 Pickering, 125; Flint v. Rogers, 15 Maine, 67.

notice is sent by mail to an endorser, suit cannot be brought against him before the time when by the regular course of the mail, the notice would reach him.(1) But as to this point, the New England cases appear

clearly to be correct.

*396]

*OF THE MEDIUM OF COMMUNICATING NOTICE OF THE DISHONOR OF NOTES AND BILLS, AND OF THE PLACE TO WHICH NOTICE MUST BE SENT.

THE BANK OF COLUMBIA, USE OF THE BANK OF THE UNITED STATES V. LAWRENCE.

In the Supreme Court of the United States.

JANUARY TERM, 1828.

[REPORTED FROM 1 PETERS, 578-584.]

Upon the dishonor of a note, the party whose duty it is to give notice, is bound to use due diligence in communicating such notice. It is not required of him to see that the notice is brought home to the party. When the facts are undisputed, due diligence is a question of law. If the parties reside in the same city or town, notice may be delivered at either the endorser's dwelling house, or his place of business; if they live in different places, notice sent by the mail to the post office nearest to the endorser, or to that at which he is in the habit of receiving his letters, will be sufficient, whether it reaches him or not. If an endorser reside at such a distance from the city or town in which the holder lives as to render the employment of a special messenger unreasonably burdensome, and if the post office of the holder's residence is the nearest to the endorser, and is that at which he usually receives his letters, a notice addressed to him at that place, through the post office, will be good.

THIS case came before the court upon a writ of error to the Cir cuit Court of the District of Columbia.

The defendant was sued as endorser of a promissory note made by Joseph Mulligan, and payable sixty days after date, at the Bank of Columbia. The making and endorsing the note, and the demand of payment, having been proved, the only question upon

(1) Smith v. The Bank of Washington, 5 Sergeant & Rawle, $18.

the trial was touching the manner in which notice of non-payment was given to the endorser; no objection being made to the sufficiency of notice in point of time.

It appeared that the banking house of the plaintiffs was in Georgetown, at which place the note was dated; that some time before the note fell due, the defendant had lived in the city of Washington, and carried on the business of morocco leather dresser, keeping a shop and living in a house of his own in [*397 the said city; that about the year 1808 he sold his shop and stock in trade and relinquished his business, and removed with his family to a farm in Alexandria county, within the District of Columbia, and about two or three miles from Georgetown; that the Georgetown post office was the nearest post office to his place of residence, and the one at which he usually received his letters.

The notice of non-payment was put into the post office at Georgetown, addressed to the defendant at that place. It was proved on the part of the defendant, that at the time of his removal into the country and from that time until after the note in question fell due, he continued to be the owner of the house in Washington, where he formerly lived: and which was occupied by his sister-in-law, Mrs. Harbaugh; that he came frequently and regularly every week, and as often as two or three times a week, to this house, where he was employed in winding up his former business and settling his accounts, and where he kept his books of account, and where his bank notices, such as were usually served by the runner of the bank on parties who were to pay notes, were sometimes left, and sometimes at a shop opposite to his house; and where also his newspapers and foreign letters were left; that his coming to town and so employing himself was generally known to persons having business with him; that his residence in the country was known to the cashier of the bank; that there was a regular daily mail from Georgetown to the city of Washington, and that the defendant's house was situated in Washington, less than a quarter of a mile from Georgetown.

Upon this evidence the plaintiffs prayed the court to instruct the jury, that it was not incumbent on them to have left the notice of the non-payment of the note at the house occupied by Mrs. Harbaugh, as stated in the evidence; but that it was sufficient, under the circumstances stated, to leave the notice at the

post office in Georgetown; which instruction the court refused to give.

The jury found a verdict for the defendant: and on error to this court the question was whether this notice was sufficient.

Mr. Justice THOMPSON, delivered the opinion of the court.

If it should be admitted, that the defendant had what is usually called a place of business, in the city of Washington, and that notice served there would have been good; it by no means follows, that service at his place of residence, in a different place, would not be equally good. Parties may be and frequently are so situated, that notice may well be given at either of several places. But the evidence does not show that "the defendant had a *398] place of business in the city of Washington, according to the usual commercial understanding of a place of business. There was no public notoriety of any description given to it as such; no open or public business of any kind carried on, but merely occasional employment there, two or three times a week, in a house occupied by another person; and the defendant only engaged in settling up his old business. In this view of the case the inquiry is narrowed down to the single point, whether notice through the post office at Georgetown was good; the defendant residing in the country two or three miles distant from that place, in the county of Alexandria.

The general rule is that the party whose duty it is to give notice in such cases, is bound to use due diligence in communicating such notice. But it is not required of him to see that notice is brought home to the party. He may employ the usual and ordinary mode of conveyance, and whether the notice reaches the party or not, the holder has done all that the law requires of him.

It seems at this day to be well settled, that when the facts are ascertained and disputed, what shall constitute due diligence is a question of law. This is certainly best calculated to have fixed and uniform rules on the subject, and is highly important for the safety of holders of commercial paper.

And these rules ought to be reasonable and founded in general convenience, and with a view to clog, as little as possible, consistently with the safety of parties, the circulation of paper of this description; and the rules which have been settled on this subject have had in view these objects. Thus, when a party entitled to

notice, has in the same city or town a dwelling house or counting house or place of business, within the compact part of such city or town, a notice delivered at either place is sufficient, and if his dwelling and place of business be within the district of a letter carrier, a letter containing such notice addressed to the party and left at the post office, would also be sufficient. All these are usual and ordinary modes of communication, and such as afford reasonable ground for presuming that the notice will be brought home to the party without unreasonable delay. So when the holder and endorser live in different post towns, notice sent by the mail is sufficient, whether it reaches the endorser or not. And this for the same reason, that the mail being a usual channel of communication, notice sent by it, is evidence of due diligence. And for the sake of general convenience it has been found necessary to enlarge this rule. And it is accordingly held, that when the party to be affected by the notice, resides in a different place from the holder, the notice may be sent by the mail to the *post [*399 office nearest to the party entitled to such notice. It has not been thought advisable, nor is it believed that it would comport with practical convenience, to fix any precise distance from the post office, within which the party must reside, in order to make this a good service of the notice. Nor would we be understood, as laying it down as a universal rule that the notice must be sent to the post office nearest to the residence of the party to whom it is addressed. If he was in the habit of receiving hist letters through a more distant post office, and that circumstance was known to the holder, or party giving the notice, that might be the more proper channel of communication, because he would be most likely to receive it in that way: and it would be the ordinary mode of communicating information to him, and therefore evidence of due diligence.

In cases of this description, where notice is sent by mail to a party living in the country, it is distance alone or the usual course of receiving letters which must determine the sufficiency of the notice. The residence of the defendant therefore being in the county of Alexandria, cannot affect the question. It was in proof that the post office in Georgetown was the one nearest his residence, and only two or three miles distant, and through which he usually received his letters. The letter containing the notice, it is true, was directed to him at Georgetown. But there is nothing showing that this occasioned any mistake or misappre

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