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duty of the holder does not require of him to give the notice at any other place. If the giving of the notice at either of these places be prevented by the act of the party entitled to receive it, the performance of the condition is excused. Washington, J. in Williams v. Bank of U. S. 2 Peters 102; Crosse v. Smith, 1 M. & S. 545; Goldsmith v. Bland, Bayley on Bills 224; Rhett v. Smith. 2 How. 481, 2.
In Williams v. Bank of U. S., the notary called at the dwelling house of the endorser at the regular time, and at a seasonable hour, for anght that appeared, to serve the notice, and found the house shut up, the doors locked, and the family absent from town upon a visit, the duration of which was unknown to the notary, or to his informer. It was decided that the notary was not bound to call a second time, nor was he under any obligation to leave a written notice, even if he could have found an entrance into the house.
If the absence was probably the consequence of a temporary removal from the city, on account of a prevailing sickness, such as yellow fever, it might be advisable to put a notice in the post office, as was done in Ogden v. Cowley, 2 Johns. 274.
It has been held by the supreme court of Pennsylvania and by the supreme court of the United States, that notice to a party, put in the post office of the town, wherein the presentment and demand are made, will be sufficient, when he lives beyond the limits of the town; and it may be directed to him at that town if its post office be the nearest to his residence, and that at which his letters are received. Bank of Columbia v. Lawrence, 1 Peters 580; Jones v. Lewis, 8 W. & S. 14. The rule is, that to a party residing in a different place or city, notice may be sent through the post office, properly directed to him. Schoneman v. Figley, 7 Barr 438.
In New York, the rule laid down in Ireland v. Kip is not applied, without some qualification, to large country towns, which often have more than one post office, or where, if they have but one, a portion of the inhabitants live so far from it that they usually receive their letters and papers through a neighbouring office in another town. Notice, it has been said, may always be sent through the post office, wherever there is a regular communication by mail between the place of presentment or demand and the office where the person to be charged usually receives his letters and papers. Ransom v. Meek, 2 Hill 591.
7. When notice is sent by mail, how the letter must be directed.
When it is proper that the notice should be sent by mail,
putting the letter containing it, properly directed, seasonably into the post office, is either notice in itself or such due diligence as will stand in its stead. Shed v. Brett, 1 Pick. 406; Mann v. Baldwin &c. 6 Mass. 316; Dickens v. Beal, 10 Peters 582; Smith v. Hawthorn, 3 Rawle 358; Weakly v. Bell &c. 9 Watts 279; Jenks v. Doylestown Bank, 4 W. & S. 511. Due attention must be given, 1st, to the direction of the letter; 2d, to the time that the notice is given or sent; 3d, to what is expressed in the notice.
The letter containing the notice to a party may be addressed to him at his place of residence, Bussard v. Levering, 6 Wheat. 102; or to the post office nearest thereto, 11 Johns. 232, Dickins v. Beal, 10 Peters 582; Bank of U. S. v. Norwood, 1 Har. & Johns. 423; or to a particular post office directed by him, Shelton &c. v. Braithwaite, 8 M. & W. 252; or to that to which he usually resorts for his letters, Reid v. Payne, 16 Johns. 221; Bank of Columbia v. Lawrence, 1 Peters 583; Jones v. Lewis, 8 W. & S. 14; Mercer v. Lancaster, 5 Barr 162. If he is in the habit of receiving letters at two post offices, notice directed to either will be good. Bank of U. S. v. Carneal, 2 Peters 551; Bank of Geneva v. Howlett, 4 Wend. 331; Rand v. Reynolds, 2 Grat. 171. In Massachusetts, where there are two post offices in a town, notice by letter to an endorser, addressed to him at the town generally, is sufficient, unless the party addressed has been generally accustomed to receive his letters at one of the offices in particular, and to have his letters addressed to him there by his correspondents. Morton v. Westcott, 8 Cush. 425. So in New York, though there may be several post offices in the same town, it is enough to send notice to the town where the drawer or endorser lives, unless it appear that the holder knew that the notice should have been directed in a different manDonner v. Remer, 21 Wend. 13, S. C. 23 Wend. 624; Seneca Co. Bank v. Neass, 3 Comstock 444.
If the holder knows the proper place to which to direct the notice, he should inform the notary of it. Fitler v. Morris, 6 Whart. 415; Haly v. Brown, 5 Barr 181. In the absence of sufficient information from this source, diligence must be used to ascertain the proper place. Beveridge v. Burgis, 3 Camp. 262; Bank of Utica v. DeMott, 13 Johns. 432; Stuckert v. Anderson, 3 Whart. 119; Phepps &c. v. Chase, 6 Metcalf 492. If it can be thus ascertained, the notice should be directed accordingly. Wells v. Whitehead, 15 Wend. 531. If on enquiry in the city, where the protest takes place, the notary ascertain the county of the party's residence, but cannot ascertain whether there be a post office nearer to his resi-VOL. II.-13
dence than that located at the seat of justice in the county, the direction may be to the place of his residence near such post office, for example, to Walnut Bottom, near Carlisle. Weakly v. Bell &c. 9 Watts 283; Bank of U. S. v. Carneal, 2 Peters 551, 2.
The notice is to be sent to the place which, according to the information received, is the best. Bank of Utica v. Davidson, 5 Wend. 488. It is not absolutely necessary that notice should be brought home to the endorser, nor even that it should be directed to the place of his residence. It is enough that the holder makes diligent enquiry, and acts upon the best information he is able to procure. If, after doing so, the notice fail to reach the endorser, the misfortune falls on him not on the holder. Bank of Utica v. Bender, 21 Wend. 645; Ransom v. Meek, 2 Hill 592; Wood &c v. Curl, 4 Metcalf 205; Preston v. Dayson &c. 7 Louis. 12; Hains v. Robinson, 4 How. 348; Lambert &c. v. Ghiselin, 9 How. 557.
In the last case, although the person of whom the holder enquired was mistaken, and the notice was not sent to the nearest or usual post office of the defendant, yet in the opinion of the supreme court, the plaintiffs used all the diligence which the law requires; and the liability of the endorser was therefore fixed. The holder thus having a right of action, no information afterwards received imposes on him the obligation of giving a further notice.
A bill, dated at New York, was protested there; the notary's clerk enquired after the drawers, at the banks in New York and elsewhere, and was informed that they resided in Virginia at Norfolk; two notices were put into the post office addressed to them, one notice directed to Norfolk, the other to New York. This was held sufficient: though it turned out that the drawers resided at Petersburg. Chapman v. Lipscombe &c. 1 Johns. 294.
If the holder, after making proper enquiry, is unable to get better information of the residence, he may, perhaps, be justified in directing the notice to the place at which the bill is dated; that furnishing some evidence of it. Mann v. Moors, Ry. & Moo. 249; Walter v. Haynes, Id. 149, 21 Eng. Com. Law Rep. 402, 429; Dickins v. Beal, 10 Peters 574. In a case in Kentucky, in which a notice was sent to Louisville, where the bill was dated, and the process against the party was served on him in the county in which Louisville is situated, these facts were deemed sufficient, in the absence of all opposing evidence, to authorize the conclusion that the notice was properly directed. Page &c. v. Prentice &c. 5 B. Monroe 7.
If it turn out that the notice was not properly directed, then the jury are to be satisfied that due diligence was used to discover the proper direction. Bateman v. Joseph, 2 Camp. 464, 12 East 433; 20 Johns. 17. For it has been decided in several of the states to be insufficient to send notice to the drawer at the place where the bill was dated, when in fact he lived at another place, and there was a failure to make due enquiry. Fisher v. Evans, 5 Binn. 541; Barnwell v. Mitchell, 3 Conn. 101; Lowery &c. v. Scott, 24 Wend. 358; Spencer v. Bank of Salina, 3 Hill 520; Carroll v. Upton, 3 Comstock 274.
In Louisiana there is a statute of the 13th of March 1827, which is construed to declare that whenever the notary certifies that after diligent enquiry for the residence of the party, he could not find it, and that a notice had been lodged in the nearest post office, addressed to him at the place where the contract was made, it shall be deemed equivalent to personal notice. Preston v. Daysson &c. 7 Louis. 11.
In New York there is a statute declaring a notice of nonpayment sufficient, directed to the city or town where the person sought to be charged by such notice resided at the time of making or endorsing a bill of exchange or promissory note. Sess. Acts 1835, p. 152; 21 Wend. 12, 23 Wend. 624.
Drawers and endorsers, it has been remarked by Bronson, J. can easily prevent mistakes, by writing under their names their place of residence, or the place where they desire notice should be sent, in case the bill or note is protested. 2 Hill 592. The Pennsylvania act of the 5th of April 1849 proceeds on this ground. It provides (in § 7, 8,) as follows:
Where suit is brought in any of the courts of this commonwealth, upon or for the recovery of the amount due on any promissory note, post note, note of hand, due bill, bill of exchange, draft, order, check, or other instrument of writing in the nature thereof, no plea shall be held available, and no defence shall be made or taken by the defendant for want of proper and timely demand of payment and acceptance, or proper and timely protest and notice of non-acceptance or non-payment of the same, unless the respective places where such demand is to be made, and where such notice is to be served and given, or the names and residences or places of business of the respective parties thereto, shall be legibly and distinctly set forth thereon.
When such places of demand and notice, or such names, residences, or places of business, are omitted to be set forth, demand of acceptance, as well as protest for and notice of non-acceptance, may be made or given at any time before the maturity of such instruments as require acceptance, and demand of payment, as well as protest for and notice of non-payment of the same, at any time after the maturity thereof, and before suit is brought thereon. 7 Harris 397, 8.
The rule as to the time, as well as place, of giving notice, is very different in a state wherein no such statute exists.
8. How soon notice must be given or sent.
The notice of dishonour must not be prior in time to the default of the acceptor or maker. Jackson v. Richards, 2 Caines's Rep. 343; Boston Bank v. Hodges &c. 9 Pick. 420.
It has been contended that notice cannot be given on the same day on which the bill or note becomes due; but it is settled otherwise. See ante, 1 Rob. Pract. 442; Bussard v. Levering, 6 Wheat. 102; Lindenberger &c. v. Beall, Id. 104; Haslett v. Ehrick, 1 Nott & McCord 116; Coleman v. Carpenter, 9 Barr 178.
These decisions only shew that notice may be given on the last day of grace; not that it must be given on that day. It is sufficient to give notice the next day to a party living in the same town. Tindal &c. v. Brown, 1 T. R. 167, 6 East 8; 2 Camp. 208. And there is a like rule if he lives elsewhere, and notice is sent him by mail. Although on the last day of grace there may be a mail closing that evening at half past 8 o'clock, the notice is not required to be sent on that day. It may be mailed next day, within post time of that day. When the last day of grace is on the 25th, and the notice is put in the post office on the 26th, before the closing of the mail of that day, it is in due time. Bank of Alexandria v. Swann, 9 Peters 45; Lenox &c. v. Roberts, 2 Wheat. 373; Smith v. Mullett, 2 Camp. 208. If there be several mails on that day, it is clearly in time to send the notice by that mail which leaves next after the hours of business cominence for the day. Howard v. Ives, 1 Hill 265.
If the last day of grace be Saturday, notice may be given on Monday, or sent by Monday's post. Howard v. Ives, 1 Hill 265. And if instead of its being Sunday it be the fourth of July, the notice may be given on the fifth. Cuyler v. Stevens, 4 Wend. 566. See ante, p. 407, 8.
Where the bill was dishonoured on Saturday, and the post left daily at half after nine in the morning, Best, J. was of opinion that a notice by the mail of Tuesday morning was in time. Hanks &c. v. Salter, 4 Bingh. 715, 15 Eng. Com. Law Rep. 125.
In many cases where the bill passes through numerous hands by endorsement, the holder has no means of knowing the resi dence of any of the remote endorsers, or of the drawer. He has therefore the right to notify any previous endorser; and an endorser duly notified by any subsequent party who is lia