Webster while he was a senator, and the Senate was in session, was held sufficient. But after the adjournment of the body, it is insufficient to send notice to the member where the body was in session; it should then be sent to the party's permanent place of residence.1 And while Congress is in session, it will not be sufficient to deposit notice to the member in the post-office of the Senate or House of Representatives, as it should be served personally by a party in the same place at his residence, or where he might personally be. It has been held that even when the indorser, who was a member of Congress, was known to be in Washington, notice sent to his residence in his district was sufficient.3

§ 130. The place where notice should be sent is generally the place named in the bill where it was dated; but this is not exclusively and conclusively the proper place. However, in the absence of any other proof that the drawer resided elsewhere, this would be prima facie the proper place to send notice to him. In Alabama, the place where an indorser should receive notice is primarily the place where he lived at the time of the indorsement; but the holder is held to an obligation to make inquiry in case of removal. When the removal was made under circumstances of peculiar notoriety, it was held insufficient to send notice to the prior place of residence.5

In the United States, it is strictly held to be the duty of the holder or notary not merely to give notice at the place where the indorser resided when the indorsement was made, if he is not found there, but he should use due diligence to ascertain his place of residence.

Thus, in Wolf v. Burgess, it was held that it was negligence in a notary, when an indorser lived out of St. Louis, not to ascertain his address by inquiring from the co-indorsers, who knew. But in a case where the notary inquired from an assistant internal revenue assessor for a party's residence, and sent notice

1 Bayley v. Chubb, 16 Gratt. 284.

2 Hill v. Norvell, 3 McLean, 583.

8 Marr v. Johnston, 9 Yerg. 1.

4 Tyson v. Oliver, 43 Ala. 455; Sprague v. Tyson, 44 Ala. 340.

5 Planters' Bank v. Bradford, 4 Humph. 39.

Barnwell v. Mitchell, 3 Conn. 101; Lowery v. Scott, 24 Wend. 358; Foard v. Johnson, 2 Ala. 565; Pierce v. Strathers, 27 Penn. St. 249.

759 Mo. 583. See, also, Gilchrist v. Donnell, 53 Mo. 591.

to the place directed, which notice was not received until nine days afterward, it was held that he used due diligence, and the indorser was liable.1

In Kentucky, it has been held that a notary public is required to give or send the notices of the dishonor of commercial paper protested by him, to the parties sought to be held liable when he knows their place of residence, and not in the cases in which it might be within his power to ascertain the fact.2

In Wood v. Corl, the note was dated at Buffalo, and the notary testified that it was reported that the indorser lived there. A notice to the indorser sent to Buffalo was held sufficient. In a late case, where the indorser of a note, payable one year after date, resided at Rochester at the time of the indorsement and ten years prior thereto, and continued to reside there until six months before it fell due, and information was given by the indorser's relatives that she continued to reside there, it was held that notice addressed to Rochester was sufficient.1

§ 131. Time within which notice should be given.— Formerly, the time within which notice should be given was stated to be within a reasonable time after dishonor; 5 but now there is a definite period fixed, within which notice must be given to a party, or he will be discharged. It is now well established that as soon as the dishonor of the note or bill occurs, notice may be at once given, and a party is not under an obligation to wait until the close of the business day on which the dishonor took place.

Thus, in a late case in Maine it was held that a notice served upon an indorser, upon the last day of grace, after previous demand upon and refusal by the maker on the same day, is not premature.7

Notice is not necessary on the very day of dishonor; the

1 Harger v. Demis, 1 Thomp. & C. 460.

2 Mulholland v. Samuels, 8 Bush, 63.

84 Met. 203.

4 Requa v. Collins, 51 N. Y. 148.

5 Story on Bills, Sec. 285.

Bank of Alexandria v. Swan, 9 Pet. 33; Coleman v. Carpenter, 9 Barr, 178;

Ex parte Moline, 19 Ves. 216.

7 King v. Crowell, 61 Me. 244.

next day is the proper and the usual time to give the notice. When the holder and the party entitled live in the same place, the holder has the whole of the following day after dishonor to give notice, either at the place of business during business hours, or at one's residence at any time before the hours of rest.1

66

The obligation on a holder, when notice is given through the mail, is to send the notice by the first mail leaving the day after dishonor, provided the mail is not sent off at a very early or inconvenient hour.2 Some have expressed the opinion that it would be sufficient to send the notice by any mail leaving the day after dishonor. This was the opinion of Kent.3 'By the next practicable mail" after the day of dishonor is the language very often adopted; Chitty lays down the rule very strictly. He holds it the duty of the holder to give notice by the first mail after the day of dishonor, whether the post sets off from the place where he is, early or late.5 Story thought this statement of the obligation too strict. He says: "It would be more correct to say that the holder is entitled to one whole day to prepare his notice, and that, therefore, it will be sufficient if he sends it by the next post that goes after twenty hours from the time of the dishonor." The California Civil Code has provided on this head: "When notice of dishonor is given by mail, it must be deposited in the post-office in time for the first mail which closes after noon of the first business day succeeding the dishonor, and which leaves the place where the instrument was dishonored for the place to which the notice should be sent." This gives a definite rule, and a very convenient one.

1 Adams v. Wright, 15 Wis. 408; Parker v. Gordon, 7 East, 385; Story on Bills, Sec. 290; Jameson v. Swinton, 2 Taunt. 224.

2 Fullerton v. Bank U. S. 1 Pet. 605; U. S. v. Barker, 12 Wheat. 559; Lawson v. Farmers' Bank, 1 Ohio St. 206; 1 Am. Lead. Cas. 390; Story on Bills, Sec. 288; 1 Parsons N. & B. 511.

33 Com. 106, Note E.

4 Haskell v. Boardman, 8 Allen, 40.

5 Chitty on Bills, 486.

Story on Bills, Sec. 290.

7 Sec. 3148.

8 The notice is held in time if sent off during some mail the next day after dishonor. Goodman v. Norton, 17 Me. 381; Howard v. Ives, 1 Hill, 263; Whitwell v. Johnson, 17 Mass. 449; West River Bank v. Taylor, 7 Bosw. 466; 1 Parsons N. & B. 510, 511. Notice of protest for non-payment of rromissory note, personally delivered on the proper day, is not vitiated by being post-dated by

§ 132. What hour next day is reasonable for the sending of the notice by mail must depend largely upon the business customs of a place, and no definite rule could very well be fixed as to what may be properly an inconvenient hour. Seven o'clock in the morning has been held not an unreasonably early hour;1 but sunrise has been held certainly too early.2 It has been held that where the mail closes at half-past ten A. M. notice should have been sent by it; and where it closed at 10 A. M.; and likewise where it closed at ten minutes past 9 A. M.5 But in another locality, half-past nine A. M. has been held unreasonably early.

§ 133. When holidays intervene, they are counted out, as Christmas day, Sunday, the Fourth of July, or any day of public thanksgiving, or other day upon which a man is prohibited by his religion to transact secular affairs. In these cases notice is given on the next following business day.

"But notice is not invalid because given on the Fourth of July or other holiday; and although notice need not be forwarded until after dishonor, or of its reception, still it is not irregular or improper to do so, if the party chooses, the time being allowed for his convenience. If notice is received on Sunday, it need not be forwarded until the Tuesday following, as he is not bound to open the letter containing it, or to recognize it until Monday; and if received on Saturday, it need not be forwarded until Monday." 8

§ 134. A holder has a day to give notice to his predecessor. Thus, suppose there are six indorsers; the sixth has

mistake a day later, the mistake being one which could not have misled the indorser. Lennig v. Tobey, 4 Penn. L. Journ. 275. But the indorser was discharged when a note was dishonored on the 1st of July, and notice served on the following day was misdated as of the 30th of June. De La Hunt v. Higgins, 9 Abb. Pr. 422.

1 Stephenson v. Dickson, 24 Penn. St. 148.

2 Deminds v. Kirkman, 1 Sm. & M. 644.

8 U. S. v. Barker, 4 Wash. C. C. 464.

4 Haskell v. Boardman, 8 Allen, 38.

5 Lawson v. Farmers' Bank, 1 Ohio St. 206.

6 Burgess v. Vreeland, 4 N. J. 71; Hawkes v. Salter, 4 Bing. 715.

7 Chitty on Bills, 488; 1 Pars. N. & B. 515; Cuyler v. Stevens, 4 Wend. 566;

Lindo v. Unsworth, 2 Camp. 602; Martin v. Ingersoll, 8 Pick. 1.

8 Daniel on Neg. Instruments, Sec. 1043.

one day to notify the fifth, he another day to notify the fourth, and so on. But, in practice, it is usual for all the indorsers to be sent notice simultaneously, when the notary makes protest. In illustration of the rule, it was held that an indorser who received notice at eight, or half-past eight in the morning, was not bound to send it to a prior party by mail leaving at twelve o'clock the same day.1 But it is well to observe that the overdiligence of one party will not avail the tardiness of another. Every one of the intermediate parties, so far as he himself is concerned, must show due diligence, or otherwise he will lose his rights.2

§ 135. Liability of notary in reference to negotiable paper. A notary who fails to make a protest when it is required, or who neglects to give proper notice to parties to be charged in case of dishonor, will be unquestionably liable for the loss occasioned thereby. In fact, he stands in precisely the same position as any other agent who may be employed about a particular business, and will be held responsible for his laches and mistakes when loss is occasioned thereby to the party employing him.3 It is well settled that a bank receiving commercial paper as agent for collection, properly discharges its duty, in case of nonpayment, by placing the paper in the hands of a notary public, to be proceeded with in such manner as to charge the parties to it, and secure the rights of the owner; and the bank is not liable for the failure of the notary public to discharge his duty; but in such a case the notary is the sub-agent of the holder, and is responsible directly to him.1 In Commercial Bank of Kentucky v. Varnum,5 it was decided that where a notary is directed to protest a bill on the wrong day, by a bank who employs him for that purpose, he is not presumed to be a lawyer who is to

1 Bray v. Hadwen, 5 M. & S. 68.

2 Smith v. Roach, 7 B. Mon. 17; American Life Ins. Co. v. Emerson, 4 Sm. & M. 177; Carter v. Burley, 9 N. H. 558; Mitchell v. Cross, 2 R. I. 439; Rowe v. Tupper, 13 C. B. 249 (76 Eng. C. R.); Story on Bills, Sec. 294.

3 Marston v. Bank of Mobile, 10 Ala. 284; Allen v. Merchants' Bank, 22 Wend. 215; Warren Bank v. Parker, 8 Gray, 221.

4 Bowling v. Arthur, 34 Miss. 41; Com. Bank of Manchester v. Agricultural Bank, 7 Sm. & M. 592; Dorchester & Milton Bank v. New England Bank, 1 Cush. 177.

5 49 N. Y. 269.