case.

An instrument may have been indorsed after maturity, and serious question has arisen concerning time of notice in such a It has sometimes been considered that the Paper indorsed rules pertaining to indorsement of paper before after maturity. maturity should not apply, in their strictness, if at all, to such a case; and accordingly notice of dishonor as late as two months after the dishonor, on the special demand now required,' has been deemed within reasonable time.2 It has even been stated that notice is altogether dispensed with in such a case. But the better view appears to be that the rules of ordinary indorsement apply. Indorsers of paper payable on its face on demand are entitled to notice in all respects as in other cases; and why the rule should be otherwise of paper indorsed after maturity, which now is in law payable on demand, it would be difficult to explain.

§ 7. NOTICE, WHERE.

The question where notice is to be given or sent has been indirectly answered already, in part. We have seen that where the holder and the indorser reside in the same town Residence of the notice should be given to the indorser personally parties. or left at his place of business or of residence, and that when they live in different places it should be sent to the indorser's address as far as ascertainable by reasonable diligence; unless the party to be notified has added an address to his signature, in

Crocker v. Getchell, 23 Maine, 392; Manchester Bank v. Fellows, 28 N. H. 302; Bray v. Hadwen, 5 Maule & S. 68; Prideaux v. Criddle, L. R. 4 Q. B. 455.

1 The paper having been indorsed after maturity, a new contract in regard to presentment arises, to wit, that the undertaking of the maker or acceptor is to pay on demand. See ante, p. 115.

2 Van Hoesen v. Van Alstyne, 3 Wend. 75. See also McKinney v. Crawford, 8 Serg. & R. 351; Gray v. Bell, 3 Rich. 71; Chadwick v. Jeffers, 1 Rich. 397.

Gray v. Bell, supra, O'Neall, J.

* See Landon v. Bryant, 69 Vt. 203; Bassenhorst v. Wilby, 45 Ohio St. 333; Rockwood v. Crawford, 18 Conn. 361; Bishop v. Dexter, 2 Conn. 419; Berry v. Robinson, 9 Johns. 121; Course v. Shackleford, 2 Nott & M. 283; Poole v. Tolleson, 1 McCord, 199; Ecfert v. Des Coudres, 1 Mill, 69.

1

which case notice must be sent accordingly. That goes far towards answering the whole question now raised. The notice should be sent where it will be most likely to be received.2

Notice may, however, be given to the indorser personally anywhere, wherever the holder or notifying indorser may happen to

Personal notice.

find him, so far as place is concerned; it may be given to him in his house or counting room, in the cars, or on the street, so long as it is good in other respects.3 And that because the notice is mere warning, and not intended or expected to be followed then and there by payment, as is presentment for payment.

It may be that the indorser has post-office addresses in different towns, or it may be that there are several post-offices within the same town at each of which the indorser is

Different

addresses. accustomed to receive his mail. In such a case, if the party has not given his address to the notifying party, a letter containing the notice may be addressed to the indorser at the post-office nearest his residence, or at the post-office at which he usually receives his mail, or, it seems, where the facts are not known to the notifying party, to the town without naming any particular post-office; and the proper deposit of the letter in the mail, whether at the post-office or in boxes placed for receiving mail, will itself be notice. Such act would be exercising reasonable diligence, and what may become of the letter will be immaterial.5

Where there are several post-offices in the town of the indorser, notice by letter addressed to the indorser at the town generally appears, as has just been said, to be sufficient, unless the indorser has been accustomed to receive his letters at one of the

1 N. I. L. § 115.

2 American Bank v. Junk, 94 Tenn. 624; Bank of America v. Shaw, 142 Mass. 290; Casco Bank v. Shaw, 79 Maine, 376.

3 N. I. L. § 115: Where notice is actually received by the party within the time specified in this Act, it will be sufficient though not sent in accordance with the requirements of this section.' See Hyslop v. Jones, 3 McLean, 96.

4 N. I. L. § 115, 1.

See Roberts v. Taft, 120 Mass. 169.

offices in particular, and to have his letters addressed to him there. In other words, the holder makes out a presumptive case, so far, by proving that notice was sent to the indorser in a letter by mail addressed to the town generally. But that presumptive case may be met by the indorser by showing that there were several post-offices in the town to the knowledge of the notifying party, that the indorser usually received his letters at one office only, and that the fact might have been learned by reasonable inquiry. Without such evidence it might still be true that the indorser received his mail at any of the post-offices. If, however, the letter was in fact received in due time, it would make no difference that there may have been a mistake in the address.2

The post-office address of the defendant is still a matter of first importance; that rather than the precise locality of his residence. And hence where the indorser's address is known to the notifying party, and the latter sends notice addressed to his place of residence, that being in another town, he must see to it, it seems, that the indorser receives the notice and receives it in due time. Clearly where an indorser receives his mail usually in the town of his residence, but sometimes in another town, notice should be sent to the post-office of his town. For example: The defendant is indorser and the plaintiff holder of a dishonored promissory note; the two living in different towns. The defendant sometimes receives his letters at the post-office of the town in which the plaintiff resides, but usually at the postoffice of his own town. The plaintiff drops a letter in his own post-office addressed to the defendant, which is not received in due time. The defendant is discharged.3

Perhaps the rule would be different if the plaintiff did not know that the defendant lived in another town from the one at which the plaintiff knew that he received letters. At all events notice at the plaintiff's post-office would be good if the plaintiff, in mailing it there, acted upon information properly sought and

1 Roberts v. Taft, supra; Morton v. Westcott, 8 Cush. 425; Saco Bank ". Sanborn, 63 Maine, 340; Downer v. Remer, 21 Wend. 10.

2 Roberts v. Taft, supra.

3 Shelburne Falls Bank v. Townsley, 107 Mass. 444.

obtained. If the party to be notified live in one town and have his place of business in another, notice may be sent to either place.1

It is possible that the indorser may live in a very sparsely settled part of the country, and that there may be no post-office in the town in which he lives. In such a case the holder does all that is required by sending notice directed to the indorser at the nearest town having a post-office, so far as can be ascertained by reasonable inquiry.2

3

In a case of removal by the indorser, of which the holder has no notice otherwise, the indorser should inform him if he wants Removal by notice sent to his new place of residence. In the indorser. absence of notice of the change, notice of the dishonor may be sent to the indorser's former place of business or residence; at all events if the notifying party, not satisfied with his previous information, makes inquiry where he would be likely to receive correct information, and then acts accordingly.* Whether one who has, some considerable time before, had sufficient information of the residence of the indorser may afterwards safely act upon that information, and send notice accordingly, without inquiry at the time of sending, may in some cases raise a doubt; but it appears to be the general rule that when nothing has occurred to suggest to the notifying party a change of residence by the indorser, no further inquiry is necessary."

Of cases in which the parties have lived near each other, as for instance, in some small town, the holder knowing where the indorser has lived, it may be presumed from their nearness, together with any frequency of communication and notoriety of removal, that the holder was aware of the indorser's change of domicile."

1 N. I. L. § 115, 2.

2 Shed v. Brett, 1 Pick. 401, 411; Ireland v. Kip, 11 Johns. 232; Union Bank v. Stoker, 1 La. An. 269; Marsh v. Burr, Meigs, 68; s. c. 9 Yerg. 253. Bank of America v. Shaw, 142 Mass. 290; Casco Bank v. Shaw, 79 Maine, 376; American Bank v. Junk, 94 Tenn. 624.

Saco Bank v. Sanborn, 63 Maine, 340.

5 Id.; Bank of Utica v. Phillips, 3 Wend. 408; Gawtry v. Doane, 51 N. Y. 84; Berridge v. Fitzgerald, L. R. 4 Q. B. 639.

• McVeigh v. Allen, 29 Gratt. 588, 596; Bank of Old Dominion v.

Temporary absence from home does not, according to the unwritten law merchant, amount to removal, so as to require or

con

even permit sending notice to the temporary place Temporary of abode; though notice received there in due time absence: will be good. For example: The defendant is in- gressmen. dorser and the plaintiff holder of a promissory note, both parties residing in New Jersey. Business, however, takes the defendant to Cleveland, Ohio, for the season of the year when the note matures, and keeps him there much of the time. About November 1 he goes from Cleveland to Chicago on business likely to take some considerable time, and informs the plaintiff that he is going there. He remains in Chicago until November 22, on which day notice of dishonor is mailed to him at that place. The notice is not received, the defendant having left for Cleveland before the notice arrived. On his return to Cleveland, he is informed by the plaintiff of what has happened. The defendant is discharged; a temporary place of abode presumptively not being a place to which notice of dishonor should be sent.1

It seems, however, that, where an indorser has a regular abode for a considerable time in the year, a notifying party, having knowledge of such place of abode, and no knowledge of his proper domicile or permanent home, may send notice to such abode, or give notice there. For example: The defendant, indorser of a promissory note held by the plaintiff, is a senator of the United States, having an abode in Washington during the session of Congress. He leaves an agent in a city near his legal domicile to attend to his business, but of that fact the plaintiff is not aware. Notice of dishonor is seasonably mailed to the defendant at Washington. The notice is deemed good." McVeigh, 26 Gratt. 785; s. c. 29 Gratt. 546; Harris v. Memphis Bank, 4 Humph. 519; Bank of Utica v. Phillips, 3 Wend. 408.

1 Walker v. Stetson, 14 Ohio St. 89; Cases, 195. Something is said of the defendant's having had no relations to the post-office' in Chicago, whatever that may mean. The real point is that Chicago was not the defendant's place of residence or his post-office address for the purpose in question. Query, whether Cleveland would not have been a proper place to which to send, or at which to give notice? The notice actually given there was too late, because of the delay in sending the letter to Chicago.

2 Chouteau v. Webster, 6 Met. 1.