a bill, the drawer of a check only when he has been injured by delay, the indorser of a check. This notice must be neither too early nor too late. A notice served before a demand made, or before a demand could be legally made,' are alike worthless. A notice given on the second day of grace, unless the third day is Sunday,' is a nullity. The notice can be sent as soon as the demand is made on the third day of grace; 10 but in jurisdictions where the whole of the third day of grace is permitted to the maker or drawee in which to pay," a notice cannot be given before the close of business hours on the third day of grace,12 or, if the paper is payable at a bank, before the close of banking hours on the third day of grace.13 But as soon as the demand for acceptance is made and refused, or, if no such demand is made, as soon as a demand for payment is made and refused, the notice must be given. It will be immaterial if a second demand is made and notice of that demand and refusal given. This notice may be given the same day," but it is not necessary that it should be. If the parties live in the same place, notice may be given the next day, if the notice is personal.18 If the service in the same place is to 70. 3 See § 235, ante. 4 See § 237, ante. 5 See § 237, ante. v. West, 9 Baxt. 315; Draper v. Clemens, 4 Mo. 52. 11 Pierce v. Cate, 12 Cush. 190. For "Lawrence v. Langley, 14 N. H. rule in California, see Toothaker v. Cornwall, 4 Cal. 28. 12 See the last note. 16 See § 270, ante, note 50. 20 be made by mail, by reason of a statute 19 or the existence of a free-delivery system, the notice, if mailed the next day after the demand and refusal, should be mailed in time to be delivered on that day," and, if addressed to a place of business in the same city, it ought, on principle, to be mailed in time to be delivered during business hours of that day." The mailing is a substitute for the personal service, but the question of time is determined by the deposit in the mail, without regard to the receipt of the notice. Therefore a rule can be laid down uniformly as to a mail service where the residence is known. But where the residence is unknown, time consumed in diligent inquiry for the residence is always permitted, whether the service is personal or by mail to the same place or another place. Where personal service is had, the question of reasonableness of the time of service is to be determined by the receipt of the notice. The test is whether notice is given within a reasonable time in view of all the circumstances.2 The notice need not be immediate where there is no regular communication,25 yet diligence should be shown to use the earliest means of conveyance where the mails are not regular.26 The holdings upon this question are generally negative and many of them made when means of communication were defective. Thus, a delay of two and a half years to serve a notice at a distance of one hundred and thirty-two miles,27 a delay of four years,28 a delay of two years by one indorser to another,29 a 19 See § 272, ante. 20 See § 272, ante. 21 Bell v. Hagerstown Bank, 7 Gill, 216; Walters v. Brown, 15 Md. 285; Shoemaker v. Mechanics' Bank, 59 Pa. 79. 22 There seems to be no decision on this point. 23 Eagle Bank v. Chapin, 3 Pick. 180; Smyth v. Hawthorn, 3 Rawle, 355. The court is mistaken in its statement of the facts of the case. The notice was one day too late, unless the time was given for inquiry. 23 24 Phelps v. Blood, 2 Root, 518. It is singular to notice how much superior the old style of opinion is to the present method of writing treatises in each case. 25 See cases in succeeding notes. 26 Spencer v. Sterling, 10 Mart. (O. S.) 88; United States v. Barker, 4 Wash. C. C. 464, 12 Wheat. 559. 27 Steinmetz v. Curry, 1 Dall. 234, 270. 28 Hager v. Boswell, 4 J. J. Marsh. 61. 29 Steinmetz v. Curry, 1 Dall 234. 45 delay of twelve months," a delay of seven months,31 of four and one-half months,32 of four 33 and of two months in the same city, a delay of fourteen days," of fifteen days, of three weeks,37 of nineteen days in the same town,38 of ten days," of nine days to serve at a distance of two miles,40 nine days on a foreign bill," eight days to serve at a distance of four miles," 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, 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.49 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 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. 37 Alshausen v. Lewis, 1 Biss. 419. 39 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, 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 55 52 284. 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;3 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. 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. What 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. +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, 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. |