46 37 36 40 delay of twelve months," a delay of seven months," of four and one-half months," of four3 and of two months in the same city, a delay of fourteen days," of fifteen days, of three weeks, of nineteen days in the same town,38 of ten days," of nine days to serve at a distance of two miles, nine days on a foreign bill," eight days to serve at a distance of four miles,2 a delay of several days," was in each instance held unreasonable. Approaching the shorter times, a delay of two days unexplained on a personal service," of two days without diligence shown, a notice after three days' delay, a notice on the second day after maturity, or after one day's delay,48 is too late. Thus the rule can be brought down to the general statement that a delay in serving notice personally or by mail for any longer period than the next day after demand is presumptive negligence and must be explained. The effect of holidays intervening will be noticed a little later on. But certain delays have been held reasonable. Thus, in the old days when the mails were carried at comparatively long intervals between Europe and America, a delay in waiting for the fast mail was excusable, though ships carrying mails left earlier, but would not reach the port any sooner than the fast mail.50 One court, at an 49 30 Kilpatrick v. Heaton, 3 Brev. 92. 31 Lewis v. Brewster, 2 McLean, 21 (a guarantor). 32 Patillo v. Alexander, 96 Ga. 60. 33 Yancey v. Littlejohn, 9 N. C. 525. 34 London v. Howard, 2 Hayw. (N. C.) 332. 35 Hubbard v. Troy, 2 Ired. 134. 36 Brown v. Turner, 11 Ala. 752. 87 Alshausen v. Lewis, 1 Biss. 419. 38 Green v. Darling, 15 Me. 141. 39 Deininger v. Miller, 40 N. Y. Supp. 195 (notice to an executor). 40 Morris v. Gardner, 1 Cranch, C. C. 213. 41 United States v. Barker, Fed. Cas. 14,519. 42 Hussey v. Freeman, 10 Mass. 84. 43 Bank of Orleans v. Whittemore, 12 Gray, 469. 44 Howland v. Adrian, 30 N. J. Law, 41. 45 Union Bank v. Fonteneau, 12 Rob. (La.) 120. 46 Clark v. Nat. Metrop. Bank, 2 MacA. 249. 47 Hert v. Vincent, 29 N. Y. Supp. 61. 48 East River Bank v. Gedney, 4 E. D. Smith, 582; Hert v. Vincent, 29 N. Y. Supp. 61. And see Farmers' Bank v. Butler, 3 Litt. 498. 49 See § 286, post. 50 Stainback v. Bank of Virginia, 11 Grat. 260. early day, achieved the unique distinction of saying that in case of dishonor notice must be sent by the first ship sailing for any port in the United States.51 A delay, in the year 1816, of six or seven days in starting a letter from New York to New Orleans was considered reasonable,52 or a delay of six or seven days when that was the due course of mail, or a delay of one day in serving twenty miles. Delays caused by miscarriages in the mail 5 are excusable. The delays caused by death or war or pestilence will be later examined.56 53 55 54 $284. What mail of the day. As we have seen, where notice is served by mail in the same place where it is given, the letter should be deposited in the mail, if deposited the next day after demand, in time to be delivered on that day. There is another rule applicable to posting on the next day after demand which has its reason in the same considerations of active diligence which support the rule just stated. It is that notice mailed upon the next day after dishonor must be by the first mail on that day. But this rule is subject to limitations: first, that there be a mail on that day; if there be none, the server may wait until the next mail day; second, the mail must be made up at a reasonable hour on that day. If the mail of that day closed the night before, it is a mail of the preceding day. What 51 Fleming v. McClure, 1 Brev. 428. There was no evidence to show an earlier sailing. The jury were left to presume it without proof. A. K. Marsh. 610; U. S. Bank v. 52 Pinder v. Nathan, 4 Mart. (O. S.) See also Smith v. Poillon, 87 N. Y. 346. 53 Sharpe v. Drew, 9 Ind. 281. 54 Freeman v. Wikoff, 16 La. 20. 55 See $273, note 1, and Newbold v. Boralf, 155 Pa. 227. 56 See $287, 291, post. 1 See note 21 to the preceding section. 2 Burgess v. Vreeland, 24 N. J. Law, 71; Dodge v. Bank of Kentucky, 2 590; Eagle Bank v. Chapin, 3 Pick. 180; Commercial Bank v. Union Bank, 19 Barb. 391. 3 Lawson v. Farmers' Bank, 1 Ohio St. 206. But he must send by the first mail thereafter. Townsley v. Springer, 1 La. 122. 4 Wemple V. Dangerfield, 2: Smedes & M. 445. is a reasonable hour should be decided by the business hours of the place, allowing reasonable time for the preparation of the notice after the beginning of business hours. Thus, 8 o'clock in the morning is an unreasonable hour in New York, but an Ohio court contends that 9 o'clock A. M. is a reasonable hour for a Pennsylvania man at the depressing city of Pittsburg. But 2 o'clock A. M. and 5 o'clock A. M. are unreasonable for mailing. In Mississippi a mail at sunrise is too early," but one at 9 o'clock in the morning is a perfectly reasonable hour.10 At just what barbarous hour business begins in Mississippi cannot be said, but it lies somewhere between sunrise and 9 o'clock in the morning. In Louisiana 7 o'clock in the morning is presumed to be early enough." Subject to the foregoing considerations as to the hour of the mail's leaving, and subject to the rule as to the first mail, the notice if mailed on the succeeding day must be mailed in time to be put into the mail of that day. The better rule is that the notice need not be sent by the first mail on the next day after maturity if a reasonable excuse exists for not doing so, or if there be more than one mail on that day,13 and a special indulgence of one day was given to the secretary of the treasury owing to the necessities of 13 5 Sussex Bank v. Baldwin, 17 N. J. Law, 487; Marks v. Boone, 24 Fla. 177; Farmers' Bank v. Duvall, 7 Gill & J. 78; Chick v. Pillsbury, 24 Me. 458. 6 Howard v. Ives, 1 Hill, 263. 7 Lawson v. Farmers' Bank, 1 Ohio St. 206. The Pennsylvania court considers 7 A. M. a reasonable hour! Stephenson v. Dickson, 24 Pa. 148. 8 West v. Brown, 6 Ohio St. 542; Stephenson v. Dickson, 24 Pa. 148. 9 Deminds v. Kirkman, 1 Smedes & M. 644. The case carefully conceals the time of year. 10 Downs v. Planters' Bank, 1 Smedes & M. 261. It was held that 12 a mailing at 9 o'clock A. M. was insufficient unless it appeared that there was no earlier mail. 11 Commercial Bank v. King, 3 Rob. (La.) 243. Notice put into the mail at 7 o'clock A. M. will be presumed to be in time for the mail of that day, but notice put in at 9 A. M. will not be so presumed. Beckwith v. Smith, 22 Me. 125. 12 Lenox v. Roberts, 2 Wheat. 373; Goodman v. Norton, 17 Me. 381; Beckwith v. Smith, 22 Me. 125; Manchester Bank v. White, 30 N. H. 456; Bank of Alexandria v. Swan, 9 Pet. 33; Moore v. Burr, 14 Ark. 230. 13 Smith v. Poillon, 87 N. Y. 590; Whitwell v. Johnson, 17 Mass. 454. 15 public business.14 If the server sends notices to an agent to mail, the agent must exercise due diligence, and his delay of one day has been considered unreasonable, as well as his mailing of the notice to be delivered on the next day where he could have delivered on the same day.16 The choosing of a needlessly circuitous route is not an excuse for the delay resulting therefrom."7 285. Time for successive obligors.- As we have seen, the notice may come through successive holders or indorsers,1 and each indorser has one day in which to forward notice after service has been received by him.2 The rule of the earliest practicable mail upon the next day is applied to this method of service. The indorser notified must send notice of the first notice he receives to the prior indorser, however remote the party may be. He cannot wait until he receives a notice passing through successive parties after the one who has given him notice. But notice need not be, as one court mistakenly supposed, after the receipt of actual knowledge. The rule that whichever party to the paper is selected to be noticed directly from the holder, notice from the holder must be given to him as of the next day after dishonor, without 14 United States v. Barker, 4 Wash. C. C. 464, 12 Wheat. 559. 15 United States v. Barker, supra. 16 Cassidy v. Kreamer, 13 Atl. R. 744 (Pa.); Shelburne Falls Bank v. Townsley, 102 Mass. 177. one day from the time that notice was received in fact. But the indorser can await notice in the regular way. West River Bank v. Taylor, 7 Bosw. 466, 34 N. Y. 128. 3 Earliest mail on next day. Has 17 West River Bank v. Taylor, 7 kell v. Boardman, 90 Mass. 38; Bosw. 466, semble. 1 See §§ 276, 277, 278, ante. 2 State Bank v. Ayres, 7 N. J. Law, 131; Smith v. Poillon, 87 N. Y. 590; Carter v. Burley, 9 N. H. 558; Allen v. Avery, 47 Me. 287; Lawson v. Farmers' Bank, 1 Ohio St. 206; Davis v. Hanley, 12 Ark. 645; Grand Gulf Co. v. Barnes, 12 Rob. (La.) 127. It was held in New Orleans Co. v. Bieu, 9 Rob. (La.) 110, that the notice must be sent within Mitchell v. Cross, 2 R. L. 437; American Life Ins. Co. v. Emerson, 4 Smedes & M. 177; Manchester Bank v. Fellows, 28 N. H. 302. Mail on the same day to same postoffice. Shelburne Falls Bank v. Townsley, 102 Mass. 177. 4 Carter v. Burley, 9 N. H. 558. 5 See the last note. 6 See note 2, supra, the case of New Orleans Co. v. Bieu, 9 Rob. (La.) 110. waiting and claiming the time that would have been made possible if the notice had been sent to him through the parties subsequent to him upon the paper,' applies to indorsers giving notice to other indorsers after notice to them of dishonor. When notice is sent from the holder or server at another place to an indorser to serve upon a person in the same place as the indorser, that indorser may serve by mail," although some authority disputes this,10 and the rule as to the next day for service ought to apply to notice sent to an agent to serve;" but there is abundant authority for saying that he must act upon the same day that he receives the notice to serve.12 The rule applies conversely, and there is no doubt that the holder receiving notices from his agent has until the next day in which to serve.13 The persons who can give this notice must be, as we have seen, parties to the paper or their agents," and a transferrer of the paper without indorsement.15 But one who is merely interested in the paper cannot be entitled to this privilege, except as an agent for some actual party; nor can indorsers whose indorsements have been erased," it seems, according to a palpably erroneous decision. 16 § 286. Time of service as affected by holidays and Sundays. Where the day upon which notice should have been 7 See § 277, ante, and City Nat. Bank v. Clinton Co. Nat. Bank, 49 Ohio St. 351; West River Bank v. Taylor, 34 N. Y. 128. 8 Etting v. Schuylkill Bank, 2 Pa. 355; Simpson v. Turney, 5 Humph. 419. 9 Shelburne Falls Bank v. Townsley, 102 Mass. 177; Warren v. Gilman, 17 Me. 360. 10 See § 272, ante, note 19. 14 See § 278, ante. 16 Flack v. Green, 3 Gill & J. 474; Barker v. Whitney, 18 La. 575. But the real owners who have indorsed the paper for collateral security may give notice. Cowperthwaite v. Sheffield, 1 Sandf. 416. 17 First Nat. Bank v. Farneman, 93 Iowa, 161. But it is difficult to conceive of a more erroneous case. The 11 See § 272, ante, note 19, and indorsements were canceled after note 16, infra. transmission of the notices. That 12 See § 285, ante, notes 15 and 16, fact was therefore immaterial. and note 16, infra. They existed when the notices were 13 Haskell v. Boardman, 90 Mass. 38. transmitted. |