1

time to be received on that day. Genuineness of the postmark may be proved by any witness, whether a post-office employee or not.2

§ 1053. When there are a number of parties entitled to notice it is sufficient in order to hold any one of them bound, to show that notice reached him in such a time as it would occupy for the intermediate parties to transmit it to him in due course of the mails, allowing each one his day. But the courts cannot take judicial cognizance of the course of the mails, and that must be shown by the plaintiff. It would be better for him also to show that he gave notice in due season to his immediate indorser.5 When the plaintiff has shown that notice reached the remote party within the time which would regularly be consumed, it will be for him to show a defective link in the chain of notices, if any there be.

§ 1054. When the mail is the proper channel for the communication of notice, it is not necessary to show the distinct fact that the particular letter containing the notice was put in the mail, by ocular evidence thereof. Proof that notice was put with letters for the post-office by one clerk, and that the letters of that day were deposited by another clerk, would be sufficient. And it would likewise be sufficient to show that it was put with letters customarily made up in the usual course of business for the postman, and that he invariably carried all the letters found upon the table. But it has been held that proof that a letter was put on the table with others, and that it was the regular course of business for the porter to take them to the post-office, would not be sufficient at least unless it were proved that the porter always

1. Fowler v. Henden, 4 Tyrw. 1002; Byles on Bills (Sharswood's ed.) [*275], 427.

2. Woodcock v. Houldsworth, 16 M. & W. 124; Fletcher v. Braddyll, 3 Stark. 64.

3. Jones v. Wardell, 6 W. & S. 399; Etting v. Schuylkill Bank, 2 Pa. St. 345; Marsh v. Maxwell, 2 Campb. 210.

4. Friend v. Wilkinson, 9 Gratt. 31; Carter v. Burley, 9 N. H. 558; Early v. Preston, 2 Pat. & H. 228.

5. 1 Parsons on Notes and Bills, 518.

6. Commercial Bank v. Strong, 28 Vt. 316.

7. Skilbeck v. Garbett, 7 Q. B. 846. See Brailsford v. Williams, 15 Md. 150; Flack v. Green, 3 Gill & J. 474; Miller v. Hackles, 5 Johns. 375; Knickerbocker Life Ins. Co. v. Pendleton, 115 U. S. 346; Persons v. Kruger, 45 App. Div. 184, 60 N. Y. Supp. 1078, citing text.

carried the letters so prepared, which, without any distinct remembrance as to that particular one, the court intimated would be satisfactory.8

Delivering the notice to the assistant postmaster in an adjoining room would suffice, that being the usage of the place; but a clerk's statement that notice was put in, he not remembering whether by himself or another, would not.10 Delivery to a mailcarrier is sufficient." So, also, depositing the notice in a letterbox put up by the government.'

12

§ 1055. The protest of a foreign bill is, by the law merchant, evidence of its presentment and dishonor; but except where it is so provided by statute, it is not evidence in respect to notice; and where a statute does not authorize the admission of the certificate of protest as evidence of notice, it is usual to take the notary's deposition to prove it, or that of some other witness, or to call the notary or witness to testify ore tenus at the trial.13

Statutory enactments have very generally changed this doctrine of the law merchant, and though sustained by authority, a distinguished author has denied it.14

If the notary has kept no record of the notice, his oral testimony is competent to prove the contents.15

§ 1056. Where a notary testified that it was usual for him to send notices of dishonor on the evening of the day of protest, and he had no doubt it was duly done in this instance, it was held sufficient evidence of notice.16 But where a notary testified as to a

8. Hetherington v. Kemp, 4 Campb. 193; Byles on Bills (Sharswood's ed.), 420; Swampscott Machine Co. v. Rice, 159 Mass. 404, 34 N. E. 520.

9. Mount Vernon Bank v. Holden, 2 R. I. 467.

10. Hawkes v. Salter, 1 Moore & P. 750.

11. Pearce v. Langfit, 101 Pa. St. 507; ante, § 1005a.

12. Casco Nat. Bank v. Shaw, 79 Me. 376; Wood v. Callaghan, 61 Mich. 402; ante, § 1005a.

13. See chapter XXVIII, on Protest, section V, § 960 et seq.; Harrison v. Robinson, 4 How. 336; Lambert v. Ghiselin, 9 How. 532; Dickens v. Beal, 10 Pet. 582; Miller v. Hackley, 5 Johns. 384; Lloyd v. McGair, 3 Barr, 482; Walker v. Turner, 3 Gratt. 536.

14. 2 Parsons on Notes and Bills, 498. See chapter XXVIII, on Protest, section IV.

15. Terbell v. Jones, 15 Wis. 253.

16. Miller v. Hackley, 5 Johns. 375. See also Carson v. Bank of the State, 4 Ala. 148; Persons v. Kruger, 45 App. Div. 184, 60 N. Y. Supp. 1078, citing

similar habit, and presumed notice was given, but had no distinct recollection, it was held otherwise.17 A clerk's conclusion from circumstances which he remembered, though he did not recollect having delivered notice, that he had done so, was thought sufficient in another case.18 It was likewise held in Maine, that where the notary testified he had prepared notice and given it to S. to deliver, and S. had no recollection of that particular notice, but it was his habit to deliver notice, generally, the usage operated sufficient evidence of notice.19

§ 1057. When the notary who gave the notice is dead, the entries respecting it in his books are good secondary evidence,20 even where protest is not required by law, as in the case of a note or an inland bill.21 But the entry can prove no more than what it states; and if it omits to state the residence of the indorser, the post-office to which notice was addressed, or any other material fact, it cannot be inferred.22 The notary's register would be no evidence after his death if the entries were made by a clerk still living, and although he be absent and out of reach,23 but if such clerk were deceased it would be.24 Entries made by officials deceased at the time of trial are in general admissible, and the principle has been held to apply to the case of deceased messengers and bookkeepers,25 cashiers of banks, 26 and clerks,27 as well as to notaries.28 "The

17. Hoff v. Baldwin, 12 Mart. 699. See also Bullard v. Wilson, 17 Mart. 196. In New York held, that memorandum at the foot of the notary's certificate, to wit: "Notice mailed to Dennis Ryan (an indorser), St. Paul, Minn.," is sufficient evidence that proper notice of protest was given in the absence of a sworn denial of the receipt of the notice by the indorser. See McLean v. Ryan, 36 App. Div. 281. [This decision is based upon section 923 of the Code of Civil Procedure, and can hardly be regarded as the general law.] 18. New Haven County Bank v. Mitchell, 15 Conn. 206.

19. Union Bank v. Stone, 50 Me. 595.

20. Robins v. Pinckard, 5 Smedes & M. 51.

21. Nicholls v. Webb, 8 Wheat. 326; Butler v. Webb, 2 Wend. 369. See chapter XXVIII, on Protest, section IV.

22. Farmers' Bank v. Duval, 7 Gill & J. 78; Halliday v. Martinet, 20 Johns. 168; Insurance Co. v. Wilson, 29 W. Va. 566, citing the text.

23. Wilbur v. Selden, 6 Cow. 162.

24. Gawtry v. Doane, 51 N. Y. 90.

25. Welsh v. Barratt, 15 Mass. 380.

26. Nichols v. Goldsmith, 7 Wend. 160.

27. Ocean Nat. Bank v. Carll, 10 Hun, 241.

28. Halliday v. Martinet, 20 Johns. 168; Nicholls v. Webb, 8 Wheat. 326; Nichols v. Goldsmith, 7 Wend. 160; Homes v. Smith, 16 Me. 181; Price v. Torrington, 1 Salk. 285.

rule is," says Bronson, J., "that entries and memoranda made. in the usual course of business by notaries, clerks, and other persons, may be received in evidence after the death of the persons who made them.'

11 29

1058. When diligence is question of law, and when of fact.When the facts are ascertained, it is simply a question of law for the court to determine whether or not reasonable diligence has been exercised;30 but when the facts are disputed, it is a question for the jury upon hypothetical instructions of the court.31

§ 1058a. Diligence suffices. When due diligence has been exercised, and notice sent accordingly, the holder is not obliged to give any further notice, although he afterward discovers that the notice. was sent to the wrong place. Such is the doctrine of the United States Supreme Court, which has said on this subject, where the holder, after due inquiry, sent notice: "The liability of the indorser was fixed by the notice sent to Nottingham. The plaintiffs had acquired a right of action against him by this notice, and might have brought their suit against him the next day. Could that right be divested by the information which was subsequently given to them? We think not, and that all of the cases in relation to this subject imply the contrary.' In New York a contrary view has been taken, but without apparent confidence,33 and it would be more reasonable to regard the holder as having complied with his obligation when he had acted with due diligence to ascertain the indorser's whereabouts.

29. Brewster v. Doane, 2 Hill, 537.

" 32

30. Bank of Columbia v. Lawrence, 1 Pet. 578; Harris v. Robinson, 4 How. 336; Walker v. Stetson, 14 Ohio St. 89; Belden v. Lamb, 17 Conn. 442; Wheeler v. Field, 6 Metc. (Mass.) 290; Bank of Utica v. Bender, 21 Wend. 643; Rhett v. Poe, 2 How. 457; Edwards on Bills, 648; Lane v. Bank of West Tennessee, 9 Heisk. 419.

31. See chapter XVII, on Presentment for Acceptance, section III, § 466, vol. I; and chapter XX, on Presentment for Payment, section III, § 612, vol. I. 32. Lambert v. Ghiselin, 9 How. 552.

33. Beale v. Parish. 20 N. Y. 407, overruling 24 Barb. 243.

CHAPTER XXX.

CIRCUMSTANCES OF A GENERAL NATURE WHICH EXCUSE WANT OF PRESENTMENT, PROTEST, AND NOTICE.

1059. The circumstances of a general nature which excuse the holder when there has been a failure on his part to make due presentment of the bill or note to the drawee, acceptor, or maker, or to convey due notice of dishonor to the drawer or indorser, may be classified as follows:

(1) The breaking out of a war between the country of the holder and that of the party to whom presentment should be made or notice given.

(2) Public and positive prohibitions of commercial intercourse between the countries of the holder and that of the party to whom presentment should be made or notice given.

(3) The occupation of the country where the parties live, or where the bill or note is payable, by a public enemy, or by military forces, which obstructs or suspends commercial intercourse.

(4) Political disturbances amounting to a virtual interruption and obstruction of the ordinary negotiations of trade.

(5) The prevalence of a malignant epidemic disease, which suspends the ordinary operations of business.

(6) Overwhelming calamity, or unavoidable accident, which obstructs the usual channels of communication.

These circumstances are of a character not affecting the individual peculiarly, but having such a general influence upon the country or the community as to impede and prevent the ordinary pursuits of business, or obstruct the methods of communication, and they are recognized, almost, if not quite, universally, as exonerating those who come under their operation from the performance of the obligations in respect to negotiable instruments with which they interfere. The classification of those circumstances which we have adopted is, with some alterations which confine them strictly within the description of "general circumstances," substantially that which is found in the work of Story on Prom