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used, as soon as it would have done had the method preferred by law been used. And the law merchant has defined, with some degree of nicety, if not of over-nicety, the methods preferred.
Before postal communications had become as frequent and as perfect as they now are, the courts had declared that where the party to be notified resided or did business in the
Use of mail. same town in which the notifying party resided or did business, the method to be preferred was by 'personal'act, which means notifying the defendant to his face or leaving written notice for him at his place of business or of residence." The mail was supposed to be not so expeditious; and hence notice sent through the post-office, in such a case, was deemed insufficient unless it was in fact received, and received no later than the latest day on which it would have been good if orally given."
And so, generally speaking, the unwritten law stands at this day. For example: The defendant is indorser and the plaintiff holder of a promissory note, the note being in the hands of a bank for collection at the place of residence of the defendant. Upon the note there is a memorandum, written by the defendant, in these words: Third indorser,' the defendant, lives at V,' the place just referred to. The collecting bank, in due time, by a notary public, puts a letter in the post-office at V, containing notice of the dishonor of the paper. There is no evidence that the letter is received, nor is there any evidence of usage at V to mail notices of dishonor in such cases. The defendant is not liable, the memorandum on the note not being an authorization of notice by the mail.8
To that rule, which in more recent times has often been regretted, three exceptions at least have come to be made in the unwritten law, one being perhaps contemporaneous with the rule itself: to wit, (1) If the parties live or do business in a place in which letters are regularly and daily delivered by carriers of the government, or perhaps by private carriers, the notice may be sent through the mail. (2) An indorser who, residing in a different town from that of the holder, has himself received due notice through the mail, may notify a prior indorser by the mail, though that indorser resides in the same town in which he, the notifying indorser, resides, and though the practice of delivering letters does not prevail there. (3) Where the parties live in different villages or perhaps districts of one town, the mail may be used for sending notice.
1 Brown v. Bank of Abingdon, 85 Va. 95.
? Notice by telegraph would be good, of course, if delivered in season Fielding v. Corry, 1898, 1 Q. B. 268, 271.
8 Bowling v. Harrison, 6 How. 248.
For example (hypothetical): The defendant is indorser and the plaintiff holder of a dishonored promissory note, both parties living in Chicago. Notice of the dishonor may be given by mail. Again: The defendant is indorser of a bill of exchange payable in Philadelphia to A or order, who lives in Providence; A indorses the bill to a bank in Providence; that bank indorses it over to another bank in New York, which latter bank indorses it for collection to a bank in Philadelphia. The bill is dishonored, and the collecting bank causes notices to be made out for all the parties, and sends them seasonably to the bank in New York; that bank sends notice seasonably to the bank in Providence, inclosing a notice for the defendant; and the bank in Providence now places this last-named notice in the post-office properly addressed. The defendant's liability under the circumstances is duly fixed. Again: The defendant is indorser and the plaintiff holder of a promissory note which has been dishonored. The parties both reside in the town of S, but the defendant resides in another part of the town from the plaintiff, in a distinct village, C, where he usually receives his mail. The plaintiff mails notice of dishonor to the defendant seasonably, addressed to him at C. The defendant's liability is duly fixed."
When, indeed, notice through the mail is proper, the mere mailing the notice, in a post-office or in a letter box under control of the post-office, if seasonable, is enough to fix the lia
1 Eagle Bank v. Hathaway, 5 Met. 212.
2 Shaylor v. Mix, 4 Allen, 351. The defendant, however, received the potice.
• N. I. L. 8 113.
bility of the indorser; the law merchant does not expect the bolder to see that the post-master delivers it or that
Mailing notice the indorser has received it in
way. For enough. example : The defendant is indorser and the plaintiff holder of a promissory note, the former living in Boston, the latter in Philadelphia. The note is payable in Philadelphia, is dishonored, and protested by a notary. The notary thereupon mails in Philadelphia a letter containing the notice to the defendant in Boston. It does not appear that the defendant has ever received the letter. The defendant's liability is duly fixed."
The Statute appears to treat notice by the mail as proper in all cases, as it should be in the certainty and despatch of the post-office in our day.”
Indeed, judicial authority, proceeding more or less upon custom in cities, has gone still further and treated notice by mail, when proper at all, as good against all parties to whom notices may be inclosed in a single letter addressed to a later indorser. So to do has been deemed exercising due diligence, and hence whether the letter or the notices are ever received is immaterial. For example : The defendant is third indorser and the plaintiffs are holders of a promissory note. Before maturity of the note the plaintiffs send it for collection to their agent, a bank in Boston, which bank indorses it and sends it to its own agent, a bank in New York. At maturity payment is demanded and refused, and the note duly protested. Notices of dishonor are thereupon addressed by the notary to each of the indorsers and sent in a letter to the bank in Boston, duly addressed and mailed in the post-office in New York. This letter, with inclosures, is lost and never received by the bank or by the defendant. The liability of the defendant is deemed to have been duly fixed, due diligence having been exercised according to the usage and practice of merchants and bankers, and it being immaterial that the last indorser held the note for collection only.
1 Munn v. Baldwin, 6 Mass. 316. See also Shelton v. Carpenter, 60 Ala 201 ; Jones v. Wardell, 6 Watts & S. 399.
? See N. I. L. 88 110, 111. & Wamesit Bank v. Buttrick, 11 Gray, 387. But see Van Brunt a
An agent, in giving notice, is treated as if he were principal; hence whether notice to be given by such person should be by Agent treated personal’ act or by mail is to be determined by as holder.
his situation towards the indorser, not by the situation of the principal towards the indorser.
A private messenger may be employed in any case to carry the notice, even in those cases in which the mail is the preferred Use of mes
means. But where the employment of a messenger senger. is not presumptively the method to be adopted as it would be in a village in which both parties resided, there being no delivery there by carriers, and as it would not be where they reside in different towns), the notice by messenger will be good only in case it is delivered to the indorser personally, or at his place of business or of residence, not later than the latest day on which it would reach its destination in due course of the mail.
Notice may be sent to the several indorsers in succession. For example: A promissory note is indorsed by five persons Notice in
successively. The holder may notify the fifth succession.
indorser; the fifth indorser may then notify the fourth; the fourth may then notify the third; and so on back to the first. Each notice so given, if seasonable, will fix Jiability.
Notice by what is aptly termed inurement has already been referred to in the section relating to the persons who may give Notice by
or send notice. The subject belongs equally to the inurement. present section, and it may accordingly be stated here that one of the methods of notice is by inurement; and that may be explained by the following example: The defendant is first of three indorsers of a promissory note of which the Vaughn, 47 Iowa, 145, where the notice is treated as good provided the party to whom the notices are directed himself sends them on.
i Manchester Bank v. Fellows, 28 N. H. 302 ; Bowling v. Harrison, 6 How. 248.
2 Shelburne Falls Bank v. Townsley, 107 Mass. 444; &. o. 102 Mass. 177. When each notice is seasonable, see infra, $ 6.
s Ante, p. 143.
plaintiff is holder. The note being dishonored at maturity, the holder gives due notice to the third indorser, and the third indorser gives due notice to defendant (or to the second indorser, who duly notifies the defendant). The plaintiff is entitled to recover, the intermediate notice (or notices) given inuring to his benefit. 1
$ 6. NOTICE, WHEN. Notice of dishonor may be given by the holder either on the day of the dishonor, being the day of maturity, or on the first following secular day; and it must be given on Presumptive one of those two days unless a sufficient reason is time: reasonshown for omitting to do so,' or the indorser will able diligence. be discharged. There is, however, no case in which, by the law merchant, notice must be given on the day of dishonor, however easily it might be done, and whatever the consequences of not doing it. For example: The defendant is indorser and the plaintiff holder of a promissory note payable in Alexandria, Virginia, which matures August 25. On that day it is dishonored. On the next day notice is sent to the defendant by mail in Washington, where he resides. notice is seasonable; the law merchant requiring, not the utmost, but only ordinary, reasonable diligence.
It should be remarked that, although what the law merchant requires in the matter of fixing the liability of the indorser, whether in respect of presentment, protest, or notice, is only in terms reasonable diligence'; still what constitutes reasonable diligence is often defined, presumptively but only presumptively, within narrow limits. And the point under consideration is an example. Reasonable diligence only is required; 6 but that is
1 See Simpson v. Turney, 5 Humph. 419, where, however, the intermediate notice was too late.
2 N. I. L. $ 109; King v. Crowell, 61 Maine, 244 ; Howard v. Ives, 1 Hill, 263.
8 Lindo v. Unsworth, 2 Camp. 602; 12 Rev. Rep. 750, Jewish festival held by Lord Ellenborough ground for delay.
4 Bank of Alexandria v. Swann, 9 Peters, 33. See Smith v. Poillon, 87 N. Y. 590, 597.
6 Farnsworth v. Mullen, 164 Mass. 112.